System Q Limited - Conditions of Sale
All business carried out by System Q Limited is subject to the terms and conditions below. You must ensure these terms are understood, as you accept them by trading with System Q Limited
- 1 DEFINITIONS & GENERAL
In these conditions:
- “Seller” means System Q Ltd.
- “Goods” means the Goods (including any instalment of the Goods) set out in the Order.
- “Buyer” means the immediate purchaser of the Goods from the Seller.
- “Contract” means the contract between the Seller and the Buyer for the supply of Goods in accordance with these Conditions.
- “Order” the Buyer's order for the supply of Goods, or as set out in the Buyer's purchase order form, or written acceptance of the Seller's quotation as the case may be.
- “Price” means the agreed price stated in a contract of sale to which these Conditions apply.
- “writing” - includes fax, SMS text message, e-mail and comparable means of communication.
- 2 FORMATION OF CONTRACT
- Any quotation given by the Seller shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
- The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. No qualification or condition contained in any request for quotation, order or other communication from the Buyer shall form any term of the Contract unless expressly accepted in writing by a Director of the Seller.
- An Order is deemed to be accepted only once the Seller has accepted it in writing, commenced work on it, dispatched it or otherwise appropriated items for performance of the Order.
- Orders are accepted subject to the credit status of the Buyer being satisfactory to the Seller who may cancel the Contract if its credit enquiries at any time prove unsatisfactory to it.
- An Order must be accompanied by all information necessary for the Seller to proceed with the Contract. If work is delayed or additional costs incurred through lack of such information or changes in information, the Seller may increase the Price to cover the additional costs and/or extend the delivery date.
- The Seller's employees or agents are not authorised to make any representations concerning the Goods. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations.
- Any descriptions of the Goods contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
- 3. PRICE
Unless otherwise agreed in writing the Price is ex-works, Seller's address and is expressed in pounds sterling net and is exclusive of VAT and all other taxes, levies, import duties and charges of a similar nature, and all carriage, insurance, packing, freight and installation charges, which shall be invoiced to the Buyer.
- 4. TERMS & PAYMENT
- The Seller may invoice the Buyer for the Price on, or at any time after delivery, unless the Goods are to be collected by the Buyer, or the Buyer fails to take delivery of them, in which event the Seller may invoice the Buyer for the Price at any time after the Seller has notified the Buyer that the Goods are ready for collection, or has tendered delivery of them.
- Where the Buyer does not have a trade account with the Seller, payment must be made upon placing the Order.
- Where the Buyer has a trade account with the Seller, payment in cleared funds will be due by the end of the month following the month the invoice was dated unless alternate terms have been agreed in writing and time for payment shall be of the essence of the Contract. Payment is deemed to be made when the Seller's bank account is credited with the amount due with cleared funds. The Seller may invoice for each shipment separately.
- The Buyer shall make all payments in full without deduction, set-off or counterclaim whatsoever from, or against the same, except as required by law and regardless of any delays in delivery or performance or any corrections or adjustments that may be necessary to the Goods.
- Where an Order includes a discount or free product(s) and, for whatever the reason, if any Goods from that Order are returned to the Seller, or no payment is received by the Buyer from the Seller for that Order in part or full, the discount value must be paid to the Seller and the free product returned to the Seller.
- The Seller does not operate a “Sale or Return” Policy. The Buyer may only cancel the Contract or seek to return unwanted goods with the prior written consent of the Seller and against payment by the Buyer of such restocking charge as the Seller shall notify to the Buyer from time to time.
If any monies payable by the Buyer to the Seller are not paid when due or if the Buyer is in breach of any of its obligations (whether under the Contract or any other agreement with the Seller) or becomes bankrupt, enters into liquidation, has an administrative order made in respect of it or suffers the appointment of a receiver to all or any of its assets or if the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business, the Buyer shall immediately pay to the Seller all monies payable by the Buyer under the Contract or any other agreement with the Seller (whether or not then otherwise due for payment) and without prejudice to any other remedy:
The Seller shall have the following rights in respect of the Contract and every other agreement with the Buyer
- To suspend or cancel the delivery of any Goods and any other performance by the Seller (and if suspended the Seller’s time for performance shall be extended accordingly);
- to terminate all or any part of the Contract and any incomplete contract with the Buyer.
- The Buyer shall pay to the Seller on a full indemnity basis all costs and expenses of any nature incurred by the Seller arising from the breach by the Buyer (including, but not limited to, all legal costs on a full indemnity basis).
- The Buyer shall pay interest (after as well as before judgement) on any monies payable by the Buyer to the Seller which are not paid when due at an annual rate of 4 percentage points above the base rate of Royal Bank of Scotland from time to time compounded with monthly rests calculated from the date of due payment until the date of actual payment.
- 5. VARIATIONS IN PRICE
The Seller, by notice to the Buyer at any time before delivery, may increase the Price to reflect any increase in the cost to the Seller which is due to any factor beyond its control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), or any delay caused by any instructions by the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
- 6. DELIVERY
- Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that they are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering them to that place.
- Whilst every effort will be made to adhere to any agreed shipment dates, such dates are not guaranteed and the Seller shall not be liable for any expense, loss or damage arising directly from any delay in shipment or delivery however caused. Time for delivery shall not be of the essence of the Contract and late delivery shall not be grounds for rejecting Goods or terminating the Contract.
- The Buyer shall accept delivery of the Goods by instalments if the Seller so requests.
- If the Buyer, once notified the Goods are ready for despatch or collection, fails to accept delivery or make collection, or if the delivery programme is varied at the Buyer’s request, the Seller may invoice the Buyer for the Price and may charge the Buyer for storage, insurance and all other expenses incurred by it in respect of those Goods and risk in those Goods shall be treated as having passed to the Buyer from the date of the Seller's notification.
- If the Buyer fails to accept delivery fourteen days after being notified that the Goods are ready for despatch or collection (as the case may be), the Seller may, at its option and in addition to the above rights, treat this as a cancellation of the Order with effect from the date the Seller notified the Buyer that the Goods were ready for despatch or collection (as the case may be) and the Seller may resell or otherwise dispose of part or all of the Goods.
- Where a Contract provides for delivery by instalments, delays in or the non-delivery of any instalment shall not entitle the Buyer to cancel the Contract or reject any other instalment.
- 7. FORCE MAJEURE
The Seller shall not be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the Goods or any part thereof has been delivered, the Buyer shall pay to the Seller a proportion of the Price appropriate to the Goods that have been delivered. If no Goods have been delivered and the Contract becomes impossible to perform for reasons not reasonably within the Seller's control, the Seller’s liability shall be limited to repayment to the Buyer of any sums paid by him to the Seller under the Contract.
- 8. RISK
Risk of damage to, or loss of the Goods, shall pass to the Buyer:
- in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
- in the case of Goods to be delivered elsewhere, at the time of delivery or, if the Buyer fails to take delivery of the Goods when the Seller has despatched them.
- The Seller shall not be obliged to give the notice required by section 32(3) of the Sale of Goods Act 1979, or any notice of intended despatch.
- 9. PROPERTY
- Notwithstanding that the Buyer obtains possession of the Goods, title to the Goods will remain with the Seller until the earlier of (a) payment being received from the Buyer of the Price in full with all VAT thereon and all other monies that may be or become payable from the Buyer to the Seller in relation thereto; and (b) the Buyer reselling the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in condition 9.3. Until such time as title passes the Buyer shall hold such Goods as bailee in a judiciary capacity for the Seller and shall store the Goods in such a way as to show clearly that they are the property of the Seller and the Seller shall be entitled to require the Buyer to deliver such Goods or any of them to it on demand, and if the Buyer fails to do so forthwith, to enter the Buyer’s premises for the purpose of collecting them (to include, without prejudice to the generality of the foregoing, the dismantling of any item into which such Goods have been incorporated) and the Buyer shall be responsible for all the Seller’s costs with so doing whether the subject of this Contract or any other Contract for which payment has not been made.
- The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
- Subject to condition 9.4 the Buyer may use or sell the Goods by way of bona fide sale in the ordinary course of its business on its standard terms and conditions before the Seller receives payment for such Goods, but if he does it is by way of sale as principal (not as agent) and title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
If, before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in condition
4.7, then, without limiting any other right or remedy the Seller may have:
- the Buyer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
the Seller may at any time:
- require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
- if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
- The Seller shall be entitled to apply any payments received from the Buyer in satisfaction of whichever invoice or part thereof as the Seller shall in its absolute discretion decide and shall be entitled to vary such application as many times as it shall desire until such time as all sums owing by the Buyer to the Seller have been paid.
- Where Goods are sent to the Buyer on a loan and described as ‘demonstration equipment’, the Seller retains legal and equitable title of such Goods at all times. The Buyer shall hold and store the Goods in such a way as to show clearly that they are the property of the Seller and the Seller shall be entitled to require the Buyer to provide access to the Seller or its representative to collect the Goods for transportation. In this event, the Buyer shall take due care and attention to package the Goods for transportation in a safe and secure manner. In the failure to allow the Seller or third party access to retrieve the Goods, the Buyer shall agree to return the Goods to the Seller at their own expense (and under their own insurance) showing due care and diligence in doing so.
- 10 WARRANTY
- Subject to the provisions set out below the Seller warrants that the Goods will correspond with the specification set out in the Order at the time of delivery and will be free from defects in material or workmanship, for a period of 12 months from the date of delivery (“Warranty”).
- The Seller's liability for breach of the Warranty shall be limited solely to replacing or repairing, without charge, the defective Goods or parts thereof.
The Warranty is given by the Seller subject to the following conditions:
- the Buyer must notify the Seller of any defect(s) in the Goods in writing within 7 days of the relevant defect becoming apparent;
- if requested by the Seller, the Buyer shall return such Goods or parts suitably packaged and at the Buyer’s risk describe the circumstances in which such Goods or parts became defective;
- before returning the Goods to the Seller, the Buyer shall obtain a returns authorisation number (RMA number), which shall be quoted when the Goods are returned; and
- the Seller is given a reasonable opportunity of examining such Goods.
The Seller shall be under no liability in respect of any defect in the Goods arising from:
- any drawing or specification supplied by the Buyer;
- fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing); or
- misuse, alteration or repair of the Goods.
- The Warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall be entitled only to the benefit of any such warranty or guarantee, as is given by the manufacturer to the Seller;
10.6 Subject as expressly provided in these Conditions and except where the Goods are sold under a consumer sale (as defined
by the Sale of Goods Act 1979) all warranties, conditions or other terms implied by statute or common law are excluded to
the fullest extent permitted by law.
- The Warranty is given solely to the Buyer. Where Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979), the statutory rights of the Buyer are not affected by these Conditions.
Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and 10.8.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to condition 10.8 the Seller's total liability to the Buyer under this Contract shall not exceed the amount of the Price. The Seller's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
- 11 PRODUCT LIABILITY
- The Buyer shall use all responsible endeavours to ensure that the Goods are operated in accordance with the instruction manuals supplied with the Goods and shall provide all relevant personnel with the necessary training in respect of the Goods.
- The Buyer shall ensure that all warnings displayed on the Goods or the packaging, at the time of delivery, shall not at any time be removed, defaced or otherwise obscured and further the Buyer shall contractually pass such obligation to any third party recipient of the Goods.
- The Buyer shall indemnify the Seller against any loss suffered as a result of the Buyer being in breach of any part of this Condition.
- 12 CONFIDENTIALITY
The Buyer shall not at any time disclose or (save for operation of the Goods) use any confidential information or knowledge as to methods of manufacture, plans, drawings, price lists, documents or other information relating to the Goods or the Seller.
- 13 ASSIGNMENT
- The Seller may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Seller.
- The Seller may assign any of its invoices to RBS Invoice Finance Ltd. This gives RBS Invoice Finance Ltd. the same status as the Seller, and the Buyer accepts that it trades with the same terms and conditions with RBS Invoice Finance Ltd as it does with the Seller. After any assignment, the Seller retains all its rights with the Buyer under these terms and conditions.
- 14 NOTICE
Any notice hereunder shall be in writing and effectively given if delivered to the office of the addressee normally used for communications relating to the Contract or be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case). Any notice shall be deemed to have been received on the next business day.
- 15 INTERPRETATION
All Contracts hereunder shall be governed and construed in accordance with English Law. The Buyer irrevocably submits to the exclusive jurisdiction of the English courts.