1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions "the Client" means the person to whom this quotation or invoice is addressed or by whom this order is placed, or the person to whom SALESXCHANGE LIMITED will provide Consultancy or Marketing Services. "Conditions" means these standard terms and conditions of business. "Goods" means equipment, products or services to be supplied by SALESXCHANGE LIMITED to the Client. "Consultancy Services" means all and any consultancy or advice including without limitation advice on the selection of equipment, software and other products, dealings on behalf of the Client with manufacturers and suppliers and dealers in such equipment and products, systems reviews and advice on invitations to tender. "Contract" means the contract for the purchase and sale of Goods or supply of Consultancy Services and "Contract for Goods" and "Consultancy Contract" shall be construed accordingly. "Completion" in relation to a Consultancy Contract means, unless special provisions are included overleaf, practical completion of the Consultancy Services which shall be deemed to have occurred when SALESXCHANGE LIMITED has delivered its final report or recommendations. The headings are for convenience only and shall not affect their interpretation.
2.1 These Conditions shall govern the Contract, shall not be affected by any previous dealings between SALESXCHANGE LIMITED and the Client and are not variable except by writing signed by a director of SALESXCHANGE LIMITED. By entering into a Contract the Client agrees without qualification to accept these Conditions.
3.1 In a Contract for Goods:
(a) If an order corresponding to this quotation is received by SALESXCHANGE LIMITED within 30 days from the date of the quotation, or a written acceptance is issued by SALESXCHANGE LIMITED in respect of an order, the quoted prices shall remain fixed, subject to errors and omissions being corrected; and
(b) Unless special provisions are incorporated overleaf the price shall include delivery to the Client's nominated destination on the United Kingdom mainland.
3.2 In any case where the Client purchases equipment, products or services direct from a manufacturer, dealer or other supplier, that party's terms and conditions of sale may apply to the contract between it and the Client and SALESXCHANGE LIMITED shall be under no liability to the Client in respect of any price increases or other deviations from any quotation or order.
3.3 In a Contract for Goods or Services, payment terms are 50% deposit with order (unless otherwise specified) and payment of the balance in full within 14 days after delivery and the Client shall not be entitled for any reason to make any deduction or withhold payment to SALESXCHANGE LIMITED.
3.4 In a Contract for Consultancy, there is a minimum charge of £75.00, unless special provisions are incorporated overleaf, payment terms are 50% of the consultancy fee on signing the Contract and payment of the balance in full on Completion without deduction or withholding for any reason.
3.5 For orders under £500, payment in full is required in advance. For orders over £5000, payment by Credit Card will incur an additional charge of 3.0% or as levied by RBS PLC.
3.6 In a Contract for Services, unless special provisions are incorporated overleaf, payment terms are 100% of the cost stated in advance and completion of any necessary Standing Order Forms if there is a contractual obligation to continue with additional services over a period longer than three months.
3.7 In any Contract time for payment shall be of the essence and if the Client fails to make payment on time or if SALESXCHANGE LIMITED has reasonable grounds for doubting that payment will be made on time then without prejudice to any other right or remedy available to SALESXCHANGE LIMITED, SALESXCHANGE LIMITED may:
(a) Cancel the Contract or suspend deliveries or services;
(b) Appropriate any payment made by the Client to such of the Goods or services (or goods supplied under any other Contract with the Client) as SALESXCHANGE LIMITED decides; and
(c) Charge interest (both before and after judgement) on all outstanding amounts at the rate of 5% per annum above RBS PLC base rate from time to time compounded quarterly from the date when payment was due until the date of actual payment.
3.8 Contracts for Goods may not be cancelled unless agreed by SALESXCHANGE LIMITED in writing. Notwithstanding any such agreement the Client will be liable to pay any expenses incurred by SALESXCHANGE LIMITED including without limitation administration, handling and packaging costs.
3.9 Consultancy Contracts may be cancelled by the Client without penalty and any part of the Consultancy Fee already paid will be refunded at any time up to 21 days prior to any agreed starting date, but if cancelled thereafter any part of the Consultancy Fee already paid shall be forfeit. If cancelled after the commencement of the Consultancy Services the Client shall in addition pay to SALESXCHANGE LIMITED:
(a) Any agreed installments of the Consultancy Fee which have by then fallen due for payment; and
(b) Any additional part of the Consultancy Fee which would be due on a proportionate basis according to the amount of the Consultancy Services which have by then been performed; or if greater
(c) An amount equal to the whole balance of the Consultancy Fee then outstanding, less a deduction of 10% of that outstanding amount.
4. DELIVERY AND PERFORMANCE
4.1 The risk in Goods shall pass when SALESXCHANGE LIMITED delivers them at the Client's premises or other agreed delivery destination.
4.2 SALESXCHANGE LIMITED has the right to deliver the Goods by installments in any sequence and in such a case each installment shall be deemed to be the subject of a separate Contract and any default or failure by SALESXCHANGE LIMITED in respect of one or more installments will not vitiate the Contract in respect of Goods previously delivered or still to be delivered.
4.3 Any quoted delivery dates (whether or not referred to as "agreed delivery dates") are approximate only and do not form part of the Contract.
4.4 If the Client fails to take delivery of the Goods or any part of them on the due date or to provide any instructions, documents, licenses, consents or authorisations required to enable the Goods to be delivered on the due date SALESXCHANGE LIMITED shall be entitled upon giving written notice to the Client to store or arrange for the storage of the Goods and:
(a) Risk in the Goods shall pass to the Client;
(b) Delivery shall be deemed to have taken place; and
(c) The Client shall pay to SALESXCHANGE LIMITED all costs and expenses including storage and insurance charges arising from the failure.
4.5 In a Consultancy Contract SALESXCHANGE LIMITED shall be deemed to have fulfilled its obligations to the Client upon Completion whereupon the whole balance then outstanding of the Consultancy Fee shall become immediately due and payable.
4.6 SALESXCHANGE LIMITED shall not be liable for any penalty, loss, injury, damage, or expense arising from any delay or failure in delivery or performance of any Contract from any cause at all nor will any such delay or failure entitle the Client to refuse to accept any delivery or performance of or to repudiate the Contract.
5.1 The Client may arrange for a finance company to purchase the Goods direct from SALESXCHANGE LIMITED at the price payable under the Contract provided that the Client has given notice to SALESXCHANGE LIMITED before a Contract has been entered into, the finance company agrees to be bound by these Conditions and SALESXCHANGE LIMITED has consented to the arrangement.
6. RETENTION OF TITLE TO GOODS
6.1 Notwithstanding delivery the property in the Goods shall not pass to the Client and SALESXCHANGE LIMITED shall remain the sole and absolute owner of the Goods until the Client has paid in full: (a) The price of the Goods; and (b) Any other monies owing from the Client to SALESXCHANGE LIMITED whether under a Contract for Goods or a Consultancy Contract or otherwise.
6.2 SALESXCHANGE LIMITED shall be entitled to maintain an action for the price of the Goods notwithstanding that property in them shall not have passed to the Client.
6.3 Without prejudice to any of SALESXCHANGE LIMITED's other rights (whether to damages or under any Contract or otherwise) SALESXCHANGE LIMITED may at any time after the price of the Goods or any other monies owing from the Client have become due and remain unpaid rescind the Contract and recover any Goods which are still SALESXCHANGE LIMITED's property and may by its servants or agents enter the Client's premises for that purpose or any other premises where SALESXCHANGE LIMITED reasonably believes the Goods may be.
6.4 The Client's right to possession of the Goods will cease at the earliest of the following dates:
(a) On the expiration of any agreed period of credit;
(b) If he is an individual and commits an act of bankruptcy or applies to the court for an interim order in respect of an individual voluntary arrangement or does anything which would entitle a petition for a bankruptcy order to be made;
(c) If it is a company if it does anything or fails to do anything which would entitle a receiver to take possession of any assets or which would entitle any person to present a petition for winding up or apply for an administration order;
(d) If the Client does or suffers (in any jurisdiction) anything analogous to the matters referred to in (b) and (c) above; or
(e) If the Client does anything that may in any way imperil SALESXCHANGE LIMITED's title to the Goods or omits any precautions or other things so that SALESXCHANGE LIMITED's title may be imperiled.
7.1 In a Contract for Goods:
(a) Any claim for non-delivery of any Goods must be notified to SALESXCHANGE LIMITED within 3 days from the date on which the Goods were to be delivered.
(b) Any claim that Goods have been delivered in a damaged state or are not of the correct quantity or do not comply with their description must be notified to SALESXCHANGE LIMITED within 3 days of delivery.
(c) Any alleged defects must be notified by the Client to SALESXCHANGE LIMITED within 7 days of delivery and if it is alleged that the defect was not reasonably apparent on inspection SALESXCHANGE LIMITED must be notified within 7 days from the time the defect was reasonably apparent or came to the Client's attention.
(d) Any notifications or claims must be in writing and must contain full details of the claim and of the relevant Goods.
(e) The Client must afford SALESXCHANGE LIMITED reasonable opportunity and facilities to investigate any claims and if requested by SALESXCHANGE LIMITED must promptly return the affected Goods with their packaging, securely packed and carriage paid to SALESXCHANGE LIMITED for examination.
(f) SALESXCHANGE LIMITED shall not be liable for any claims or defects unless notified in accordance with this Clause.
7.2 In a Contract for Services or Consultancy:
(a) SALESXCHANGE LIMITED warrants that it will exercise reasonable skill and care in the performance of the Consultancy or Services but not that equipment, products or services subsequently purchased by the Client will be suitable for the Client's purpose or will perform according to any specifications, claims or representations made by manufacturers, dealers or other suppliers.
(b) SALESXCHANGE LIMITED shall be under no liability to the Client in respect of any non-delivery, damage or defects of or in any equipment, products, installations or services supplied or to be supplied by a manufacturer, dealer or other supplier.
(c) The Client shall keep SALESXCHANGE LIMITED indemnified against any and all claims from manufacturers, dealers or other suppliers in respect of any equipment, products, installations and services supplied to the Client by such persons.
8. THE SCOPE OF THE CONTRACT
8.1 Under no circumstances will SALESXCHANGE LIMITED be liable for:
(a) Defects or damage to Goods resulting from fair wear and tear or improper use by the Client or failure by the Client to comply with the instructions or advice of SALESXCHANGE LIMITED or the manufacturer or neglect of any other description;
(b) Goods which have been installed, adjusted, altered, modified, adapted, or repaired by any party other than SALESXCHANGE LIMITED;
(c) The suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or use or conditions were known or communicated to SALESXCHANGE LIMITED;
(d) Descriptions, specifications, performance figures, drawings or illustrations contained in SALESXCHANGE LIMITED's price lists, sales literature or elsewhere which do not form part of the Contract;
(e) Defects arising from any design or specification provided or made by the Client or incorrect data provided by the Client in relation to its purposes, use, requirements, volumes and conditions of use.
(f) Technical information, recommendations, statements or advice given by SALESXCHANGE LIMITED or any of its servants or agents or given in writing to the Client before the Contract is made; or
(g) Variations in colour, weight or dimensions of any Goods or changes in specifications or substitution of any materials or components which were not part of the description or specification or if the variation or substitution does not materially affect the characteristics of the Goods and the substituted materials or components are of equal or superior quality to those originally intended to be used or originally specified.
8.2 SALESXCHANGE LIMITED shall not be liable to the Client (other than in respect of death or personal injury resulting from SALESXCHANGE LIMITED's negligence) for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of any Contract (whether for Goods or a Consultancy Contract) or from any negligence or breach of statutory or other duty on the part of SALESXCHANGE LIMITED or in any other way out of or in connection with the performance or purported performance of or failure to perform the Contract except in accordance with this Clause 8.
8.3 If it is established that any Goods have not been delivered or have been delivered damaged or are not of the correct quality or do not comply with their description SALESXCHANGE LIMITED will at its option replace the affected Goods with similar goods or allow the Client credit for their invoice value or repair or rectify the Goods.
8.4 If it is established that any Goods are defective SALESXCHANGE LIMITED will at its option replace with similar goods or allow the Client credit for their invoice value or repair or rectify the Goods or assign to the Client (so far as SALESXCHANGE LIMITED is able to do so) the rights against the manufacturer which SALESXCHANGE LIMITED may have.
8.5 Without prejudice to any or all of the foregoing Conditions, SALESXCHANGE LIMITED shall in no case be liable for any consequential or economic loss and SALESXCHANGE LIMITED's maximum liability under a Contract for Goods shall in no case exceed the price of the Goods, and under a Consultancy Contract shall in no case exceed the consultancy fee.
8.6 If SALESXCHANGE LIMITED is liable under this Clause 8 for some or part of the Goods the Contract will remain in full force in relation to the other Goods or other parts of the Goods and no set off or counterclaim may be made by the Client against or in respect of such other Goods or other parts of the Goods.
9. FORCE MAJEURE
If the performance of the Contract or any agreement or obligation between SALESXCHANGE LIMITED and the Client is prevented, restricted or interfered with by reason of any circumstance beyond SALESXCHANGE LIMITED's control then upon giving notice to the Client SALESXCHANGE LIMITED shall be excused from performance to the extent of the prevention restriction or interference.
10. APPLICABLE LAW
These Conditions, the Contract and any agreement between SALESXCHANGE LIMITED and the Client are subject to English Law and the Client consents to the exclusive jurisdiction of the English Courts