EXSEL I.T. AND COMMUNICATIONS LIMITEDTERMS AND CONDITIONS OF SUPPLY OF GOODS AND SERVICES
In these Conditions, the following definitions apply:
“Act” means the Telecommunications Act 1984;
“Commencement Date” has the meaning set out in clause 2.1;
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 17.7;
“Contract” means the contract between Exsel and the Customer for the supply of Goods and/or Services comprising the Order Form and these Conditions;
“Customer” means the person or firm who purchases the Goods and/or Services from Exsel as set out in the Order Form;
“Deliverables” means the products and materials developed by the Supplier in relation to the Project in any media, including, without limitation, computer programs, data, diagrams, reports and specifications (including drafts) set out in the Order Form;
“Delivery Location” has the meaning set out in clause 5.2;
“Exsel” means Exsel I.T. and Communications Limited, a company incorporated under the Companies Act (Registered Number SC339399) with a registered office at Suite 1c Citypark Glasgow, 368 Alexandra Parade, Glasgow, Lanarkshire, Scotland G31 3AU;
“Exsel Materials” has the meaning set out in clause 9.1.6;
“Force Majeure Event” has the meaning given to it in clause 16.1;
“Goods” means the goods (or any part of them) set out in the Order Form;
“Goods Specification” means any specification for the Goods, including any relevant plans or drawings, set out in the Order Form;
“Incentives” means any monetary incentives the Customer receives from Exsel for entering into or continuing with or extending the Contract including cash backs, refunds or other payments or schemes from time to time;“IPR” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights;
“Order Form” means the Exsel form detailing the Goods or Services to be supplied by Exsel subject to these Conditions;
“Remaining Services” has the meaning set out in clause 15.3.2;
“Services” means the services, including the Deliverables, supplied by Exsel to the Customer as set out in the Order Form;
“Service Specification” means the description or specification for the Services set out in the Order Form; and
“Term” has the meaning set out in clause 3.
In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails.
2 BASIS OF CONTRACT
2.1 The Customer's purchase order constitutes an offer by the Customer to purchase the Goods and / or Services as set out in the Order Form, subject to these Conditions. The purchase order shall only be deemed to be accepted when Exsel issues its written acceptance of the purchase order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.2 The Contract and these Conditions constitute the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Exsel which is not set out in the Contract or these Conditions.
2.3 Any samples, drawings, descriptive matter or advertising issued by Exsel and any descriptions of the Goods or illustrations or descriptions of the Services contained in Exsel's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Both the Customer and Exsel acknowledge that any terms or conditions referred to in the Customer’s purchase order are expressly excluded.
The Contract shall continue from the Commencement Date for the period of time specified in the Order Form, subject to the termination provisions set out in clause 15 (“Term”).
Exsel reserves the right to amend the Goods Specification where required by applicable statutory or regulatory requirements.
5 DELIVERY OF GOODS
5.1 Exsel shall ensure that:
5.1.1 each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Contract is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
5.1.2 if Exsel requires the Customer to return any packaging material to Exsel, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Exsel shall reasonably request. Returns of packaging materials shall be at Exsel's expense.
5.2 Exsel shall deliver the Goods to the location as set out in the Order Form (“Delivery Location”) at any time after Exsel notifies the Customer that the Goods are ready.
5.3 Delivery of the Goods shall be completed on the Goods arrival at the Delivery Location.
5.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Exsel shall not be liable for any delay in delivery of the Goods, including where late delivery is caused by a Force Majeure Event or the Customer's failure to provide Exsel with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5 Exsel may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6 QUALITY OF GOODS
6.1 Exsel shall ensure that any third party warranties (if any) applicable to Goods are passed to the Customer. Exsel shall notify the Customer of such warranty terms including processes for reporting warranty claims.
6.2 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Exsel under the Contract.
7 TITLE AND RISK
7.1 Risk in the Goods shall pass to the Customer on completion of delivery at the Delivery Location.
7.2 Title to the Goods shall not pass to the Customer until Exsel receives payment in full (in cash or cleared funds) for the Goods.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Exsel's property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Exsel's behalf from the date of delivery;
7.3.4 notify Exsel immediately if it becomes subject to any of the events listed in clause 15.1.2 to clause 15.1.7; and
7.3.5 give Exsel such information relating to the Goods as Exsel may require from time to time.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1.2 to clause 15.1.7, then, without limiting any other right or remedy Exsel may have:
7.4.1 the Customer's right to use them in the ordinary course of its business ceases immediately; and
7.4.2 Exsel may at any time:
(a) require the Customer to deliver up all Goods in its possession; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8 SUPPLY OF SERVICES
8.1 Exsel shall provide the Services to the Customer in accordance with the Service Specification in all material respects, using reasonable care and skill.
8.2 Exsel shall use reasonable endeavours to meet any performance dates for the Services as the parties may agree, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 Exsel shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services. In particular, Exsel shall not be under any obligation to connect or keep connected any equipment if it does not comply with the Act or if in the reasonable opinion of Exsel it could lead to death or personal injury.
8.4 In the event Exsel allocates any telephone numbers to the Customer for the purposes of providing the Services:
8.4.1 the Customer acknowledges that it shall not acquire any legal, equitable or property rights to such telephone numbers;
8.4.2 Exsel shall be entitled to withdraw or change any such telephone number of code or any such groups of numbers or codes upon giving the Customer reasonable written notices; and
8.4.3 all IPR in any such telephone numbers shall at all times remain owned by Exsel.
9 CUSTOMER'S OBLIGATIONS
9.1 The Customer shall:
9.1.1 ensure that the terms of any Goods Specification and Service Specification are complete and accurate;
9.1.2 co-operate with Exsel in all matters relating to the Goods and/or Services;
9.1.3 provide Exsel, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Exsel to provide the Services;
9.1.4 provide Exsel with such information and materials as Exsel may reasonably require to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
9.1.5 obtain and maintain all necessary licences, agreements, permissions and consents which may be required for the Services before the date on which the Services are to start; and
9.1.6 keep and maintain all materials, equipment, documents and other property of Exsel (“Exsel Materials”) at the Customer's premises in safe custody at its own risk, maintain Exsel Materials in good condition until returned to Exsel, not dispose of or use Exsel Materials other than in accordance with Exsel's written instructions or authorisation, and not to cause any attachments (other than those approved in advance by Exsel) to be connected to Exsel Materials.
9.2 The Customer shall further undertake not to:
9.2.1 contravene the Act or any other relevant legislation, regulations or licences regarding the use of the Services provided under the Contract;
9.2.2 use the Services:
(a) as a means of communications for a purpose other than for which the Services were provided; and
(b) for the transmission of material which is defamatory, offensive or of an abusive or obscene or menacing character or is of a nature which if transmitted would constitute a criminal offence or which infringes the rights (including IPR) of any third party; or
(c) for any other purpose which Exsel may notify the Customer from time to time.
In the event of any act or omission by the Customer
or failure by the Customer to perform any of its relevant obligations
9.3.1 Exsel shall without limiting its other rights or remedies have the right to suspend the supply of Services and/or all further deliveries of Goods under the Contract or any other contract between the Customer and Exsel in accordance with clause 14 until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Exsel's performance of any of its obligations;
9.3.2 Exsel shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Exsel's failure or delay to perform any of its obligations as set out in this clause 9;
9.3.3 The Customer shall reimburse Exsel for any Incentives that have been paid over the Term and the Customer shall be disqualified from receiving any future Incentives which it may have been entitled to under the Contract; and
9.3.4 the Customer shall reimburse Exsel on written demand for any costs, losses, claims, fines or damages sustained or incurred by Exsel arising directly or indirectly from the Customer Default or any suspension of the Services arising from the Customer Default.
10 CHARGES AND PAYMENT
10.1 The price for Goods and/or Services shall be the price set out in the Order Form or, if no price is quoted, the price set out in Exsel's published price list as at the date of delivery.
10.2 The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
10.3 The price of the Services is exclusive of all expenses reasonably incurred by the individuals whom Exsel engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Exsel for the performance of the Services, and for the cost of any materials, which Exsel shall be entitled to charge the Customer for.
10.4 Exsel reserves the right to increase its standard daily fee rates for the charges for the Services, Exsel gives the Customer written notice of any such increase 30 days before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Exsel in writing within 30 days of the date of Exsel's notice and Exsel shall have the right without limiting its other rights or remedies to terminate the Contract by giving written notice to the Customer.
10.5 In respect of Goods, Exsel shall invoice the Customer on or at any time after completion of delivery. In respect of Services, Exsel shall invoice the Customer on a monthly basis in arrears.
10.6 The Customer shall pay each invoice submitted by Exsel within 14 days of the date of the invoice into a bank account nominated in writing by Exsel by either:
10.6.1 debit card; or
10.6.2 credit card.
10.7 In the event the Customer elects to pay by credit card, Exsel reserves the right to retain the Customer’s credit card details and use such details for the payment of all Exsel invoices as they become due during the Term.
10.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Exsel to the Customer, the Customer shall, on receipt of a valid VAT invoice from Exsel, pay to Exsel such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
10.9 If the Customer fails to make any payment due to Exsel under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per annum above the National Westminster Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
10.10 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Exsel may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Exsel to the Customer.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 All IPR in, or arising out of, or in connection with, the Services shall be owned by Exsel including Supplier Materials.
11.2 The Customer acknowledges that, in respect of any third party IPR in the Services, the Customer's use of any such IPR is conditional on Exsel obtaining a written licence from the relevant licensor on such terms as will entitle Exsel to licence such rights to the Customer.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain.
The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 12 shall survive termination of the Contract.
13 LIMITATION OF LIABILITY
13.1 Nothing in these Conditions shall limit or exclude Exsel's liability for:
13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
13.1.2 fraud or fraudulent misrepresentation.
13.2 Subject to clause 13.1:
13.2.1 Exsel shall under no circumstances whatsoever be liable to the Customer, whether in contract, delict, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profits, loss of anticipated savings, loss and/or corruption of data or any indirect or consequential loss arising under or in connection with the Contract; and
13.2.2 Exsel's total aggregate liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be the total amount paid by the Customer for the Goods and Services supplied under the Contract and in no circumstances shall exceed £50,000 (FIFTY THOUSAND POUNDS STERLING).
13.3 For the avoidance of doubt, Exsel shall under no circumstances be liable to the Customer for any alternative supplier’s charges, irrespective of whether the Customer has appointed the alternative supplier due to a failure of the Goods and/or Services or for any other reason.
13.4 This clause 13 shall survive termination of the Contract.
14 SUSPENSION OF SERVICES
14.1 Exsel may at its sole discretion upon giving written notice to the Customer elect to suspend the supply of Services and/or all further deliveries of Goods under the Contract or any other contract between the Customer and Exsel until further notice in the event:
14.1.1 of Customer Default (as defined in clause 9.3);
14.1.2 Exsel is entitled to terminate the Contract in accordance with clause 15;
14.1.3 Exsel is obliged to comply with an order, instruction or request of the UK Government, an emergency services organisation, a provider of telecommunications or network establishing services or any other competent administrative authority; or
14.1.4 Exsel is required to carry out emergency works to the network or any equipment installed at the Customer’s premises for the purposes of the provision of the Services as appropriate.
14.2 In accordance with clause 9.3.4, where Exsel suspends the supply of Services and/or all further deliveries of Goods as a consequence of Customer Default, the Customer shall reimburse Exsel for any costs, losses, claims, fines or damages sustained or incurred by Exsel arising directly or indirectly from such suspension.
14.3 For the avoidance of doubt, Exsel’s decision to suspend the supply of Services and/or all further deliveries of Goods under this clause 14 shall not prevent Exsel from terminating the Contract.
15.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
15.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or;
15.1.3 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
15.1.4 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1.2 or clause 15.1.3;
15.1.5 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
15.1.6 the other party's financial position deteriorates to such an extent that in Exsel's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
15.1.7 any licence, agreement, permission or consent which may be required for the Services is revoked or ceases to have effect, which for the avoidance of doubt includes any automatic dialler hire agreement or any licence which permits the Customer to operate its own telecommunications system.
15.2 Without limiting its other rights or remedies, Exsel may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
15.3 On termination of the Contract for any reason:
15.3.1 the Customer shall immediately pay to Exsel all of Exsel's outstanding unpaid invoices and interest;
15.3.2 Exsel shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(a) in respect of Services supplied but for which no invoice has yet been submitted; and
(b) in respect of Services which Exsel had contracted to provide during the remainder of the Term and would have provided had the Contract not been terminated (“Remaining Services”) but only in the case of termination by Exsel pursuant to Clauses 15.1 or 15.2;
15.3.3 the Customer shall reimburse Exsel for any Incentives that have been paid over the Term;
15.3.4 the Customer shall return all of Exsel Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Exsel may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
15.3.5 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
15.3.6 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.4 The amount mentioned in clause 15.3.2(b) to be invoiced by Exsel for Remaining Services shall be calculated by multiplying:
15.4.1 the number of months between the termination of the Contract and the expiry of the Term; and
15.4.2 the average monthly amount invoiced by Exsel for the Services.
16 FORCE MAJEURE
16.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of Exsel including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Exsel or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
16.2 Exsel shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
16.3 If the Force Majeure Event prevents Exsel from providing any of the Services and/or Goods for more than four weeks, Exsel shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
17.1 Assignation and other dealings
17.1.1 Exsel may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
17.1.2 The Customer shall not, without the prior written consent of Exsel, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier.
17.2.2 A notice or other communication shall be deemed to have been received:
(a) if delivered personally, when left at the address referred to in clause 17.2.1;
(b) if sent by pre-paid first class post or other next working day delivery service, 72 hours after posting; or(c) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
17.5 No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
17.6 Third parties
A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Exsel.
17.8 Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Scots law.
Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
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