Terms & Conditions of Business
1. INTERPRETATION
1.1 In these conditions:
"Buyer" means the person whose order is accepted by the Seller.
"Goods" means the goods (including any installment of the goods or
any parts for them) which the Seller is to supply in accordance with these conditions.
"Seller" means, Switchshop Ltd.
"Conditions" means the standard terms and conditions of sale set out
in this document and (unless the context otherwise requires) includes any special
terms and conditions agreed in writing between the buyer and the seller.
"Contract" means the contract for the purchase and sale of the Goods. "Writing" includes
telex, cable, facsimile transmission and comparable means of communication.
1.2 Any reference to any provision of a statute shall be
construed as a reference to that provision as amended, reenacted
or extended at the relevant time, and "person" shall
include any individual, business, body corporate, and partnership.
The headings are for convenience only and shall not affect
their interpretation.
2. BASIS OF THE
SALE
2.1 The Seller shall sell and the Buyer shall purchase
the Goods in accordance with the written purchase order of
the Buyer subject to these conditions. The Buyer's written
order shall constitute an offer which shall be deemed accepted
by the Seller upon despatch of Goods by the Seller to the
Buyer.
2.2 No variation to these conditions shall be binding unless
agreed in writing by the Buyer and the Seller.
2.3 Any advice or recommendation given by the Seller to the
Buyer as to the storage, application or use of the Goods
which is not confirmed in writing by the Seller is followed
entirely at the Buyer's own risk.
2.4 Any error or omission in any sales literature, quotation,
price list, acceptance of offer, invoice or other document
or information issued by the Seller may be corrected without
any liability on the part of the Seller.
2.5 The Buyer shall be responsible to the Seller for ensuring
the accuracy of the terms of any order (including any applicable
specification) and for giving the Seller any necessary information
relating to the Goods within a sufficient time to enable
the Seller to perform the contract.
2.6 The Seller reserves the right to make any changes in
the specification of the Goods which are required to conform
with any applicable safety or other statutory requirements
or, where the Goods are to be supplied to the sellers specification,
which do not materially affect their quality or performance.
2.7 No order which has been accepted by the Seller may be
cancelled by the buyer except with the agreement in writing
of the Seller and on terms that the buyer shall indemnify
the Seller in full against all losses and costs. Typically
this will be 10% of the contract price, subject to a minimum
of £100.
3. PRICE OF GOODS
AND DELIVERY
3.1 The price of the Goods shall be the Sellers quoted price
or, where no price has been quoted (or a quoted price is
no longer valid), the price listed in the Seller's published
price list current at the date of acceptance of the order.
3.2 Unless otherwise agreed in writing, all prices are given
by the Seller on an ex-works basis. The Buyer shall be liable
to pay the Seller's charges for post, transport, packaging
and insurance. The price is exclusive of any applicable value
added tax, which the buyer shall be additionally liable to
pay to the Seller.
3.3 The Seller's delivery obligations shall be deemed satisfied
upon presentation of the Goods at the address specified in
the Buyers written purchase order, whether or not actual
delivery takes place. Any dates quoted for delivery of the
Goods are approximate only and the Seller shall not be liable
for any delay in delivery of the Goods howsoever caused.
Where the Goods are to be delivered in installments, each
delivery shall constitute a separate contract.
3.4 If the Buyer fails to accept the Goods on presentation
by the Seller then, without prejudice to any other right
or remedy available to the Seller, the Seller may store the
Goods until actual delivery and charge the Buyer for the
reasonable costs (including insurance) of storage.
4. TERMS OF
PAYMENT
4.1 The Seller shall invoice the Buyer for the Goods immediately
upon dispatch of the Goods to the Buyer. The time of payment
of the price shall be the essence of the Contract.
4.2 The Buyer shall pay the price of the Goods within 30
days of the date of the Seller's invoice, failing which and
without prejudice to any other right or remedy available
to the Seller, the Seller shall be entitled to:
i) increase the invoice by 15%;
ii) cancel the contract or suspend any further deliveries
to the Buyer; and
iii) charge the Buyer interest (both before and after any
judgement) on the amount unpaid, at the daily rate of 15%
per annum., compounded monthly, until payment in full is
made.
4.3 Any costs in connection with the collection of overdue
accounts will be payable, and fully indemnified by the Buyer
The costs will include charges levied by third parties and
be subject to the surcharge.
5. RISK AND PROPERTY
5.1 Risk of damage to or loss of the Goods shall pass to
the buyer at the time when the Seller or its agent, first
tenders the Goods for delivery at the address specified
in the written purchase order, whether or not delivery
is effected. From the passing of risk the Buyer shall effect
insurance for the Goods adequately covering all usual risks.
5.2 Notwithstanding delivery and the passing of risk in the
Goods the property in the Goods shall not pass to the Buyer
until the Seller has received in cash or cleared funds payment
in full for the Goods, and all other Goods agreed to be sold
by the Seller to the Buyer for which payment is then due.
5.3 Until such time as the property in the Goods passes to
the Buyer, the Buyer shall hold the Goods as the Sellers
fiduciary agent and bailee and keep them separate from and
not incorporate them within, the buyers Goods or equipment.
Until such time as the property in the Goods passes to the
buyer, the Seller shall be entitled at any time to require
the buyer to deliver up the Goods to the Seller and, if the
buyer fails to do so forthwith, to enter upon any premises
of the Buyer or any third party where the Goods are stored
and repossess the Goods.
6. WARRANTIES
AND LIABILITY
6.1 Subject to the conditions set out below the Seller warrants
that Goods, designated as standard products by the Seller,
will correspond with their description and will be free from
defects in material and workmanship for a period of 12 months
from delivery. Cables, second user equipment and most PC-related
products are not "standard" and are warranted as
aforesaid for 3 months.
6.2 The above warranty is given by the Seller subject to
the following conditions:
i) The Seller shall be under no liability in respect of any
defect in the Goods arising from any drawing, design or specification
supplied by the Buyer:
ii) The Seller shall be under no liability in respect of
any defect arising from fair wear and tear, or from the Buyers
wilful damage, negligence, failure to follow the Sellers
instructions (whether oral or in writing), misuse or alteration
or repair of the Goods without the Sellers approval:
iii) The Seller shall be under no liability if the total
price for the Goods has not been paid:
6.3 Unless expressly provided in these conditions, and except
where the Goods are sold to a person dealing as a consumer
(within the meaning of the Unfair Contract Terms Act 1977)
, all warranties, conditions or other terms implied by statute
or common law are excluded to the fullest extent permitted
by law.
6.4 Where the Goods are sold under a consumer transaction
(as defined by the consumer Transactions (Restrictions on
Statements Order 1976) the statutory rights of the Buyer
are not affected by these conditions.
6.5 Any claim by the Buyer hereunder shall be notified to
the Seller within 7 days from the date of delivery or (where
the defect or failure was not apparent on reasonable inspection)
within a reasonable time after discovery of the defect or
failure. If delivery is not refused, and the Buyer does not
notify the Seller accordingly, the Buyer shall not be entitled
to reject the Goods and the Seller shall have no liability
for such defect or failure.
6.6 Where any valid claim is made the Seller shall repair
or replace the Goods free of charge or, at its sole discretion,
refund to the Buyer the price, but the Seller shall have
no further liability to the Buyer.
6.7 Except in respect to death or personal injury caused
by the Seller's negligence, the Seller shall not be liable
to the Buyer by reason of any representation, or any implied
warranty, condition or other term, or any duty at common
law, or under the express terms of the Contract, for any
consequential loss or damage (whether for loss of profit
or otherwise), costs, expenses or other claims for consequential
compensation whatsoever (and whether caused by the negligence
of the Seller, its employees or agents or otherwise) which
arise out of or in connection with the supply of the Goods
or their use or resale by the Buyer, except as expressly
provided in these Conditions.
6.8 The Seller shall not be liable to the buyer or be deemed
to be in breach of the contract by reason for any delay in
performing, or any failure to perform, any of the Sellers
obligations in relation to the Goods, if the delay or failure
was due to any cause beyond the Sellers reasonable control.
7. INDEMNITY
7.1 If any claim is made against the Buyer that the Goods
infringe or that their use or resale infringes the industrial
or intellectual property rights of any other person, the
Seller shall indemnify the Buyer against all damages and
costs awarded against the Buyer in connection with the
claim, or agreed to be paid in settlement of the claim,
provided that:
i) The Seller is given full control of any proceedings or
negotiations in connection with any such claim:
ii) The Buyer shall give the Seller all reasonable assistance
for the purposes of any such proceedings or negotiations;
iii) The Buyer shall not make admissions, or compromise any
such proceedings;
iv) The Buyer shall do nothing which should or might vitiate
any policy of insurance or insurance cover which the Buyer
may have in relation to such infringement, and this indemnity
shall not apply to the extent that the Buyer recovers any
sums under any such policy or cover (which the Buyer shall
use its best endeavors to do);
v) The Seller shall be entitled to the benefit of all damages
and costs (if any) awarded, or agreed to be paid, to the
Buyer, and
vi) without prejudice to any duty of the Buyer at common
law, the Seller shall be entitled to require the Buyer to
take such steps as the Seller may reasonably require to mitigate
or reduce any such loss, damages, costs or expenses for which
the Seller is liable to indemnify the Buyer under this clause.
7.2 No obligation to indemnify the Buyer shall arise if the
said claim or claims result from modifications made by the
Buyer to the Goods, compliance by the Seller with Buyer's
specifications, instructions or drawings for the Goods, compliance
by the Seller with the Buyers specifications, instructions
or drawings for the Goods, or use of the Goods by the Buyer
other than as specified or recommended by the Seller.
8. INSOLVENCY
OF BUYER
8.1 If the Buyer becomes insolvent, a receiver or encumbrancer
is appointed over any of its assets, an administrator is
appointed, or any of the foregoing appear likely to occur
to the Seller, then without prejudice to any other right
or remedy available to the Seller, the Seller shall be entitled
to do any of the following, namely cancel the Contract, suspend
any further deliveries under the Contract without any liability
to the Buyer, repossess unpaid for Goods which have been
delivered , and if the Goods have been delivered but not
paid for the price shall become immediately due and payable
notwithstanding any previous agreement or arrangements to
the contrary. Costs incurred by the Seller hereunder shall
be borne by the Buyer.
9. GENERAL
9.1 Any notice required or permitted to be given by either
party to the other under these conditions shall be in writing
addressed to that other party at its registered office
or principal place of business or such other address as
may at the relevant time have been notified pursuant to
this provision to the party giving the notice.
9.2 No waiver by the Seller of any breach of the Contract
by the Buyer shall be considered as a waiver of any subsequent
breach of the same or any other provision.
9.3 If any provision of these Conditions is held by any competent
authority to be invalid or unenforceable in whole or in part
the validity of the other provisions of these conditions
and the remainder of the provision in question shall not
be affected thereby.
9.4 The Contract shall be governed by the laws of England.
The Buyer and the Seller for the sole benefit of the Seller
hereby irrevocably submit to the exclusive jurisdiction of
the High Courts of Justice, The Strand, London, in connection
with any dispute which may arise out of or in connection
with the Agreement.
