In these conditions:the 'Company' means SilverNet Ltd;
the 'Buyer'means a person or organisation at whose application the Company agrees to provide the Goods under these conditions;
the 'Goods' means the products (and/or services) supplied by the Company to the Buyer.
2. CONTRACTUAL TERMS
(1) All quotations are made, all orders received and accepted and all contracts are entered into by the Company for the sale and purchase of the Goods subject to these Conditions of Sale to the exclusion of all other conditions. All previous terms and conditions of the Company and any terms or conditions stipulated by the Buyer at any time are hereby excluded and negated unless expressly agreed otherwise in writing by the Company. No terms, conditions, warranties or representations not recorded herein shall be binding on the Company, except where such is necessarily imported into the contract by any Statute, Act or at Common Law and is not specifically excluded hereunder.
(2) All Export shipments will be governed by the International Chamber of Commerce Rules 'INCOTERMS 1990' or later for the interpretation of terms.
(3) Typographical or clerical errors or omissions are subject to correction.
(4) Illustrations, descriptions and dimensions in the Company's catalogue, price list or other documents, are approximate only and are intended only to present a general idea of the goods to which they refer and shall not form part of the contract nor shall they constitute representations or warranties, express or implied nor in any event shall the Company be liable in respect thereof. The Company reserves the right to change specifications without prior notice at its absolute discretion.
3. QUOTATION AND ACCEPTANCE
(1) Unless otherwise stated in writing any quotation issued by the Company will remain open for 28 days only and shall then lapse.
(2) A quotation shall not constitute an offer to supply and no contract exists unless there has been an acceptance by the Company in writing of an order placed by the Buyer. All orders must be accompanied by sufficient information to enable the Company to proceed with the execution of the order.
(3) The Buyer must declare to the Company the final destination of the Goods.
(4) Any order placed by the Buyer whether or not based on a quotation issued by the Company shall be subject to acceptance by the Company. All contracts are subject to the Buyer's credit being approved and to cancellation without liability at the instance of the Company if it finds the Buyer's credit to be inadequate. The contract between the Company and the Buyer is constituted by the Company's acceptance of the Buyer's order and no contractual obligation binding on the Company shall arise until despatch of acceptance in writing by the Company.
4. IMPORT AND EXPORT LICENCES
(1) The Buyer must obtain at its sole expense and responsibility any import or (where the Company instructs the Buyer to do so) export licence or licences required for the import or export of the Goods.
(2) The Company shall be under no liability whatsoever in respect of Goods exported without the necessary import or (where the Company has instructed the Buyer to obtain export licences) export licences.
(1) Unless otherwise specified, all prices are quoted, all orders accepted, and all invoices rendered at FCA or Ex-Works , United Kingdom Prices. The Company shall not be required to give the Buyer notice relating to insurance contained in Section 32(3) of the Sale of Goods Act 1979.
(2) The price for the Goods quoted by the Company is fixed for the quotation period being 28 days from the date of quotation by the Company. If the Buyer places an order after the expiry of the quotation period, the price shall be in accordance with the Company's current list price for the Goods applicable at the date of despatch by the Company.
(3) If the Goods are supplied by the Company without issuing a quotation therefor, the price for such Goods shall be in accordance with the Company's current list price for the goods applicable at the date of despatch by the Company.
(4) Prices quoted do not include Value Added Tax which shall be payable in addition (if appropriate) at the rate ruling at the appropriate tax point against receipt of an appropriate invoice.
(5)The Seller will, if requested, provide a statement with the goods assuring that they conform in all respects to the requirements of the purchase order.
(1) Any acceptance by the Company of any order placed by the Buyer shall be conditional only and shall not be binding upon the Company unless:
(a) the full purchase price for the Goods comprised in the order is paid to the Company when the order is accepted; or
(b) the order is accompanied by an Irrevocable Letter of Credit in favour of the Company, raised in the currency agreed and confirmed by a UK Bank nominated by the Company; or
(c) if the Company allows trading on an open account with stipulated payment terms, such terms are complied with by the Buyer. Unless otherwise specified in writing, payment is required within 30 days of the invoice date.
(2) Where the order is to be, or may be fulfilled in separate instalments, deliveries or parts, payment for each such instalment, delivery or part shall be made as if the same constitutes a separate agreement unless otherwise specifically agreed in writing between the parties.
(3) If the Buyer fails to pay any invoice when due or otherwise breaches the contract, without prejudice to its other rights the Company reserves the right to:
(a) suspend any deliveries to the Buyer and cancel this or any other agreement with the Buyer; and
(b) charge interest on any account overdue at the rate of 3 per cent per annum above the base rate for the time being of the Company's Bankers.
(1) Time of delivery shall not be of the essence of the contract. Any date of delivery specified is an estimate only. Whilst the Company will use reasonable commercial endeavours to deliver the Goods by the date specified (if any) it shall not be liable in any way for delay in delivery howsoever caused nor shall such a delay entitle the Buyer to reject the Goods or treat the contract as repudiated or render the Seller liable for damages in any way.
(2) The Buyer must accept delivery upon the delivery date specified and if the Buyer for whatever reason fails to do so, the invoice will nevertheless become payable. In addition, the Company reserves the right to make a reasonable charge for storage and other expenses incurred as a consequence of the Buyer's non-acceptance, and shall not be required to deliver the Goods until such charge has been paid in full by the Buyer.
(3) All delivery, packaging and duty charges are to be re-charged to the Buyer, unless expressly agreed otherwise in writing by the Company.
(4) The address to which deliveries shall be made shall be subject to separate written agreement between the parties or in the event that no such separate agreement is made shall be the address of the Buyer's place of business as specified on his order.
(5) If advance notice of approximate time of delivery is required by the Buyer this must be specified in writing on the Buyer's order.
8. CANCELATION AND VARIATION
(1) No right is given to the Buyer to cancel or vary this contract. If the Buyer wishes to cancel at any time, cancellation charges shall be made unless otherwise agreed in writing by the Company, in order to recover costs incurred up to the date of such cancellation. Such cancellation charges shall be calculated as follows:
(a) For standard items: A cancellation charge calculated at 30 per cent of the Company's price stated for each such item as at the date of cancellation.
(b) For special items: Once manufacture has commenced, cancellation of such items made to the Buyer's specific requirements will involve, in addition to the cancellation charge specified for the comparable Standard Items as above, all manufacturing costs and any other costs and expenses incurred in relation to such items, up to date of cancellation, or as a consequence of such cancellation.
The parties agree these charges represent a genuine pre-estimate of the Company's losses incurred on cancellation of orders by the Buyer.
(2) If the Buyer wishes to vary any part of the order, the Company will inform the Buyer of the cost and other consequences of such variation. The Company will only proceed with such variation if and when it receives the Buyer's undertaking to pay such costs and accept the other consequences of the variation.
9. TITLE AND RISK
(1) Until payment in full has been received by the Company for all goods sold by the Company to the Buyer whether under this or any other contract:
(a) title to and ownership of the Goods shall remain with the Company;
(b) the Buyer shall keep the Goods free from any charge, lien or other encumbrance and separate the Goods from other goods on the Buyer's premises so as to be readily identifiable as the Company's Goods and shall not remove, obliterate or deface any words or labels on the Goods or any part thereof and the Buyer shall mark the Goods conspicuously as being the property of the Company;
(c) the Company reserves the right to dispose of the Goods and the Company may enter upon the Buyer's premises at all reasonable times to recover the Goods for this purpose.
(2) Without prejudice to the foregoing, the Buyer shall be at liberty to sell the Goods or such other goods to bona fide third parties in the normal course of its business.
(3) The risk in the Goods will pass to the Buyer on delivery to the Buyer or the Buyer's carrier.
Without prejudice to its other rights, the Company shall have the right forthwith to terminate the contract or any part or parts thereof by notice in writing to the Buyer and to claim for any resulting losses or expenses if:
(a) the Buyer fails to make any payment when it becomes due or shall default in due performance or observance of any other obligation under the contract or any other agreement with the Company and (in the case of a remedial breach) fails to remedy the breach within a reasonable time specified by the Company in its written notice to do so; or
(b) the Buyer commits any act of bankruptcy or compounds with its creditors or a petition or receiving order in bankruptcy is presented or made against the Buyer or (if the Buyer is a company) a resolution or petition to wind up the Buyer is passed or presented (otherwise than for the purpose of reconstruction or amalgamation) or a receiver or administrative receiver is appointed of any of the Buyer's assets or undertaking or if the Buyer becomes unable to pay its debts or other circumstances arise which entitle the Court or a creditor to appoint a receiver or administrative receiver or to make a winding up order (or the foreign equivalent thereof under the Buyer's local jurisdiction).
11. INFRINGEMENT OF RIGHTS
(1) The Buyer shall indemnify the Company against all losses, damages, costs and expenses suffered by the Company or to which the Company may become liable as a result of any work done in accordance with the Buyer's specification(s) or instructions which involves infringement or alleged infringement of any patent, trade mark, registered design, unregistered design, right or any other form of intellectual property.
(2) If the Buyer uses or sells the Goods or makes any modification to the Goods not authorised by the Company in such a way as to infringe any such rights the Company shall not be responsible for such infringement and the Buyer agrees to indemnify the Company from and against all liability arising there from.
12. FORCE MAJEURE
Neither party will be liable to the other party for any delay in or failure to perform its obligations (other than a payment of money) as a result of any cause beyond its reasonable control, including but not limited to any industrial dispute. If such delay or failure continues for at least 90 days, either party will be entitled to terminate this Agreement by notice in writing.
13. PERFORMANCE AND TESTS
(1) The Company's products are inspected and submitted to standard tests before being despatched. Any performance figures given by the Company are based on its experience and are such as the Company would expect to obtain from such standard tests. The Company shall not be liable for any failure of its products to obtain these figures, unless such performance figures (subject to recognised tolerance applicable to such figures) are specifically guaranteed in writing by the Company.
(2) If "special tests" of the Company's products are required by the Buyer, these, unless otherwise agreed in writing, shall be carried out on the Company's premises and at the Buyer's sole expense.
14. INTELLECTUAL PROPERTY
All intellectual property rights in and relating to the Goods, their manufacture, development or creation and ownership in all drawings and all intellectual property rights therein shall remain vested in the Company at all times and the Buyer will, at the request of the Company, do any act and execute and any documents necessary to confirm such rights in or transfer such rights to the Company. The Buyer shall not reproduce the design of the Goods or any sample, model, design or drawing supplied to the Buyer without the Company's prior written permission and all drawings supplied to the Buyer shall be returned to the Company forthwith upon receipt of the Company's request therefor.
15. COMPANY'S LIABILITY
(1) The Company will indemnify the Buyer for direct physical injury or death caused solely either by defects in the Goods or by the negligence of its employees acting within the course of their employment and the scope of their authority.
(2) The Company will indemnify the Buyer for direct damage to property caused solely either by defects in the Goods or by the negligence of its employees acting within the course of their employment and the scope of their authority. The total liability of the Company under this sub-clause will be limited to £500,000 for any one event or series of connected events.
(3) Except as expressly stated in this clause and elsewhere in this Agreement, any liability of the Company for breach of this contract will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to the Buyer, the total price paid or due to be paid by the Buyer under this contract.
(4) Except as expressly stated in this contract, the Company disclaims all liability to the Buyer in connection with the Company's performance of this contract or the Buyer's use of the Goods and in no event will the Company be liable to the Buyer for special, indirect or consequential damages including but not limited to loss of profits or arising from loss of data or unfitness for user purposes.
(5) The Buyer will indemnify and defend the Company and its employees in respect of any third party claims which arise from any Company performance carried out on the instructions of the Buyer or its authorised representative.
(1) The Company warrants only that for a period of 24 months from the date of delivery the Goods will be free from defects in workmanship and materials. The Company's sole liability will be, at its option, either to repair or replace during normal working hours the Goods (or any relevant part(s) thereof) which prove defective during the warranty period.
(2) The warranty service will be performed at the Company's site in the UK . The Company will deliver the repaired or replacement items to an address agreed in writing between the parties or in the event that no such agreement is made to the address of the Buyer's place of business as specified in the Buyer's order. The Buyer will pay for the return to the Company of items for repair under warranty; the Company will pay for the return of repaired or replacement items to the Purchaser.
(3) Installation, operation and use of the Goods must be done in accordance with all reasonable instructions of the Company from time to time. Failure to follow these instructions will invalidate the warranty.
(4) The Buyer acknowledges that the warranty does not apply to any defects caused by:
(a) alterations, modifications, repairs or any other work done on or in relation to the Goods by anyone other than the Company or as approved by the Company; or
(b) use of the Goods in conjunction with any third party products; or
(c) any matter beyond the reasonable control of the Company.
(5) The Company offers certain additional warranties which are specific to each individual product sold which may or may not include the Goods. Details are available on request.
The Company reserves the right to sub-contract the performance of the contract or any part thereof.
(1) Any notice required to be given by either party hereunder shall be made in writing and despatched to the other party by first class registered air mail or recorded delivery at the respective addresses of the parties as set out in the order, acceptance of the order or by fax to any fax numbers for the parties as stated in these documents. Any notice sent by post shall be deemed (in the absence of evidence of earlier receipt) to have been received on the fifth day after the day of posting. Any notice sent by fax shall be deemed to have been delivered when the formal answerback code is received by the sender.
(2) The Buyer shall not assign or delegate or otherwise deal with all or any of its rights or obligations under this contract without the Company's prior written consent. The Company shall have the right to assign or otherwise delegate all or any of its rights or obligations hereunder to an associated company or other person upon notification to the Buyer.
(3) The failure of either party to exercise or enforce any right conferred under this contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
(4) Any contract of which these conditions form part shall be governed and construed and interpreted in accordance with English Law and the parties hereto agree to submit to the non-exclusive jurisdiction of the English Courts.
(5) Any provisions of these conditions, which in any way now or subsequently contravene any applicable law or regulation, shall be deemed severable and shall not affect any other provisions.