1.1 Definitions. In these Conditions, the following definitions apply:
Conditions: these terms and conditions.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: the deliverables set out in the Specification.
Goods: the goods belonging to the Customer
Order: the Customer’s order for the supply of Goods and/or Services
Services: the services, including but not limited to the receipt, storage, pick, pack and despatch of the Goods.
Specification: in relation to Services, the description or specification for Services agreed by the Supplier with the Customer.
Supplier: Michael Davies & Associates Limited registered in England and Wales with company number 02165614.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services from the Supplier in accordance with these Conditions.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.3 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.
2.4 Any quotation given by the Supplier shall not constitute an offer.
3.1 If the Supplier requires the Customer to return any packaging material to the Supplier, the Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request.
3.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) in line with the service levels agreed between the Supplier and the Customer.
3.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4. TITLE AND RISK
4.1 Title to the Products will (as between the Customer and the Supplier) remain with the Customer while the Products are at the Warehouse, and shall pass to the End-user as agreed between the End-user and the Customer. At no stage shall title in the Products pass to Supplier, subject to the provisions of clause 10.
4.2 The risk in the Products shall, as between the Supplier and the Customer, pass to the Supplier on receipt of the Products in the Warehouse until such time as the Products are collected for delivery by the haulier/delivery company/ delivered to the End-user and/or the Customer at which point it will pass to the haulier/delivery company, End-user or the Customer as the case may be.
4.3 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1 or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, the Supplier may at any time require the Customer to deliver up the Goods and, 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.
5. SUPPLY OF SERVICES
5.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects.
5.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
5.3 The Supplier 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, and the Supplier shall notify the Customer in any such event.
5.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
6. CHARGES AND PAYMENT
6.1 The price for the Services shall be the Supplier’s quoted price, if no price is quoted, the price set out in the Supplier’s standard rate card as at the date of delivery.
6.2 The Supplier shall invoice the Customer on or at any time after the performance of Services.
6.3 The Customer shall pay each invoice submitted by the Supplier within 30 days of the date of the invoice. Time for payment shall be of the essence of the Contract.
6.4 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).
6.5 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current National Westminster Bank PLC’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All intellectual property rights of whatever nature in or arising out of or in connection with the Services shall be owned by the Supplier.
7.2 The Supplier may use cloud computing services as part of its suite of software applications. Such services shall comply with the requirements of the European Commission’s Data Protection Directive for companies operating within Europe. Where applicable, if such services are operated by US based providers The Supplier shall procure that the providers shall be participants in the US-EU Safe Harbour Framework
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for death or personal injury caused by its negligence..
8.2 Subject to clause 8.1:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of stock or for any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total 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 not exceed the invoice value of the Services.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer or suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer commits a material breach of its obligations under this Contract (including as to payment of price) and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach;
(b) the Customer 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;
(c) the Customer makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company);
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) 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 Customer;
(g) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(h) 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 9.1(b) to clause 9.1(g) (inclusive);
(i) the other party ceases to carry on its business.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest;
(b) the Customer shall return any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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; and
(c) 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.
11. GOVERNING LAW AND JURISDICTION
11.1 This Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
11.2 In the absence of any other contract between the Supplier and the Customer, the terms of this Contract shall prevail at all times.