Cerberus Networks Limited Terms and Conditions of Trading
1.0 IN THESE CONDITIONS:
1.1 "Seller" means Cerberus Networks Limited whose Registered Office is at 9 Walmgate Road, Greenford, Middlesex, UB6 7LH
1.2 "Buyer" means the person, body of persons, firm or company who accepts the quotation of the Seller for the sale of goods or services or whose order for the goods or services is accepted by the Seller.
2.0 ORDERS AND SPECIFICATIONS
2.1 The Buyer shall be liable for ensuring the accuracy of any order for goods and/or services placed with the Seller and no variation to these conditions shall be binding unless agreed in writing between the Buyer andan authorised representative of the Seller. Implementation, execution and compliance with any order does not imply acceptance of the Buyer's Terms and Conditions of Trading which are hereby expressly excluded.
3.0 PRICE OF GOODS
3.1 The price of the goods and / or services to be rendered shall be the Seller's quoted price or if no price has been quoted the price listed in the Seller's price list current at the date of acceptance of the order whichis valid for 30 days or earlier acceptance by the Buyer, after which time prices may be altered by the Seller without notice to the Buyer.
3.2 Unless otherwise agreed in writing all prices quoted or listed by the Seller are:
3.2.1 exclusive of Value Added Tax which the Buyer shall be additionally liable to pay to the Seller;
3.2.2 given on an ex works basis and liable to transport, packing and insurance where the Seller agrees to deliver the goods otherwise than at the Seller's premises.
3.3 The Seller reserves the right to make an additional charge of 2% on the price of goods (plus VAT) in respect of all invoices paid by credit card by the Buyer.
3.4 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the goods and / or services to reflect any increase in the cost to the Seller due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the cost of labour, etc.), any change of delivery dates, quantities or specifications or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate instructions.
3.5 Except as otherwise stated the Seller reserves the right to amend quoted or listed prices, typographical or accidental errors, omissions on orders, quotations, acknowledgements and invoices at any time without notice or liability. The Buyer shall not be entitled as a consequence thereof or howsoever otherwise to make any deductions from the price in respect of any other account, set-off or counterclaim.
4.0 TERMS OF PAYMENT
4.1 The Seller shall be entitled to invoice the Buyer for the price of the goods and/or services supplied or to be supplied on or at any time after delivery, unless it has been agreed that the goods will be collected by the Buyer or the Buyer wrongfully fails to take delivery, in which event the Seller reserves the right to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the goods are ready for collection or the Seller has tendered delivery.
4.2 TIME IS OF THE ESSENCE FOR PAYMENT OF THE PRICE OF THE GOODS AND/OR SERVICES SUPPLIED OR TO BE SUPPLIED.
4.3 UNLESS OTHERWISE AGREED IN WRITING PAYMENT IS DUE IN FULL ON DELIVERY ("DUE DATE") NOTWITHSTANDING THAT DELIVERY MAY NOT HAVE TAKEN PLACE OR THAT THE PROPERTY IN THE GOODS HAS NOT PASSED TO THE BUYER. THE SELLER MAY IN ITS ABSOLUTE DISCRETION NOT ENFORCE PAYMENT OR CHARGE INTEREST (AT THE RATE RESERVED BELOW) FOR A PERIOD OF 30 DAYS AFTER DELIVERY.
4.4 If the Buyer fails to make payment on the due date the Seller shall, without prejudice to any other remedy available, be entitled to:
4.4.1 repudiate the Contract or suspend any further services and deliveries;
4.4.2 appropriate any payment made by the Buyer to such of the goods (or the goods supplied under any other contract made between the Buyer and the Seller) and/or services as the Seller may think fit; and
4.4.3 charge the Buyer interest (both before and after any Judgment) on any unpaid amount at the rate of 8 per cent per annum above the base rate from time to time from the due date until full payment is received in cleared funds by the Seller; and
4.4.4 charge the Buyer all costs, fees or commissions incurred by the Seller in instructing its collection agents, to recover any unpaid monies.
5.1 Delivery of any goods shall be effected by the Buyer collecting the goods from the Seller's premises at any time after the Seller has notified the Buyer that the goods are ready for collection or if a different destination for delivery has been agreed by the Seller delivering the goods to that destination.
5.2 TIME SHALL NOT BE OF THE ESSENCE FOR ANY DELIVERY DATES QUOTED BY THE SELLER ITS EMPLOYEES OR AGENTS WHICH MUST BE TREATED AS APPROXIMATE ONLY AND THE SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM ANY DELAY IN DELIVERY OF THE GOODS OR SERVICES HOWSOEVER CAUSED.
5.3 If the Seller fails to deliver the goods or supply the services for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer in the cheapest available market of similar goods to replace those not delivered over the price of the goods.
5.4 If the Buyer fails to take delivery of the goods or fails to give the Seller adequate delivery information or instructions at the time stated for delivery (otherwise than by any cause beyond the Buyer's reasonable control or the Seller's fault) the Seller may, without prejudice to any other right or remedy available:
5.4.1 store the goods until delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
5.4.2 Sell the goods at the best price readily obtainable and after deducting all reasonable storage and selling expenses account to the Buyer for the excess above the price or charge the Buyer for any shortfall below the contract price.
5.5 If the Seller agrees with the Buyer to effect delivery by instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments pursuant to these conditions or any claim by the Buyer relating to any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
6.0 RISK AND PROPERTY
6.1 RISK OF DAMAGE TO OR LOSS OF THE GOODS SHALL PASS TO THE BUYER:
6.1.1 AT THE TIME THE SELLER NOTIFIES THE BUYER THAT THE GOODS ARE AVAILABLE FOR COLLECTION IF DELIVERY OCCURS AT THE SELLER'S PREMISES; OR
6.1.2 IF DELIVERY OCCURS AT A DESTINATION DIFFERENT FROM THE SELLER'S PREMISES THEN AT THE TIME OF DELIVERY TO THAT DESTINATION BY THE SELLER OR IF THE BUYER WRONGFULLY FAILS TO ACCEPT DELIVERY AT THE TIME THE SELLER TENDERED DELIVERY OF THE GOODS.
6.2 NOTWITHSTANDING DELIVERY AND THE PASSING OF RISK OR ANY OTHER PROVISION OF THESE CONDITIONS THE PROPERTY IN THE GOODS SHALL NOT PASS TO THE BUYER UNTIL THE SELLER HAS RECEIVED IN CASH OR CLEARED FUNDS PAYMENT IN FULL OF THE PRICE OF THE GOODS AND ALL OTHER GOODS SOLD OR AGREED TO BE SOLD BY THE SELLER TO THE BUYER FOR WHICH PAYMENT IS THEN DUE.
6.3 UNTIL SUCH TIME AS THE PROPERTY IN THE GOODS PASSES TO THE BUYER:
6.3.1 THE BUYER SHALL HOLD THE GOODS AS THE SELLER'S FIDUCIARY AGENT AND BAILEE AND SHALL KEEP THE GOODS SEPARATE FROM THOSE OF THE BUYER AND THIRD PARTIES AND PROPERLY STORED, PROTECTED, INSURED AND IDENTIFIED AS THE SELLER'S PROPERTY. UNTIL THAT TIME THE BUYER SHALL BE ENTITLED TO RESELL OR USE THE GOODS IN THE ORDINARY COURSE OF ITS BUSINESS BUT SHALL ACCOUNT TO THE SELLER FOR THE PROCEEDS OF SALE OR OTHERWISE OF THE GOODS WHETHER TANGIBLE OR INTANGIBLE INCLUDING INSURANCE PROCEEDS SEPARATE FROM ANY MONIES OR PROPERTY OF THE BUYER AND THIRD PARTIES AND IN THE CASE OF TANGIBLE PROCEEDS, PROPERLY STORED, PROTECTED AND INSURED.
6.3.2 THE SELLER (PROVIDED THE GOODS ARE STILL IN EXISTENCE AND HAVE NOT BEEN RESOLD) 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 THEM.
6.4 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 AND IF THE BUYER DOES SO ALL MONIES OWING BY THE BUYER TO THE SELLER SHALL (WITHOUT PREJUDICE TO ANY OTHER RIGHT OR REMEDY OF THE SELLER) FORTHWITH BECOME DUE AND PAYABLE.
7.0 WARRANTIES & LIABILITIES
7.1 Subject as expressly provided in these conditions, and except where the goods are sold to a person dealing as a consumer all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.2 Where the goods are sold under a consumer transaction (restrictions on statements) order 1976 the statutory rights of the Buyer are not affected by these conditions.
7.3 The Seller warrants to the Buyer that the goods will be of satisfactory quality and fit for any purpose made known to the Seller in writing at the time of placing the order, will correspond with any relevant specification therefore or sample thereof and will comply with all statutory requirements and regulations relating to the sale of goods. Any claim by the Buyer which is based on any defect in the quality or condition shall (whether 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 shall not be entitled to reject the gods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the goods had been delivered in accordance with the contract.
7.4 The Seller will not be responsible for the safety or integrity of any data stored in the hard disk or howsoever otherwise stored on any computer. Any such data will at all times be the responsibility of the Buyer who acknowledges that the Seller excludes all liability in respect of any damage or loss howsoever caused to any data.
7.5 Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the goods (or the part in question) free of charge or, at the Seller's sole discretion, credit to the Buyer the price of the goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
7.6 Except in respect of 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 of their use or resale by the Buyer, except as expressly provided in these conditions.
8.0 FORCE MAJEURE
8.1 The Seller shall not be liable to the Buyer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the goods or services, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control;
8.1.1 Act of God, explosion, flood, tempest, fire or accident;
8.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
8.1.4 import or export regulations or embargoes;
8.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.1.6 difficulties in obtaining raw materials, labour, fuel, parts of machinery;
8.1.7 power failure or breakdown in machinery.
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark of other industrial or intellectual property rights of any other person, the Seller shall indemnity the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
9.1.4 the Buyer shall do nothing which would 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 thatthe Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim and;
9.1.6 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 indemnity the Buyer under this clause.
10.0 INSOLVENCY OF BUYER
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation(otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer or;
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notified the Buyer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Buyer, and if the goods have been delivered and/or services rendered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.1 The Buyer shall not assign or transfer this contract or any benefit arising thereunder without the prior written consent of the Seller.
12.1 These Terms and Conditions shall be deemed to supersede previous Terms and Conditions.2.2 Any notice given by either party to the other pursuant to these Terms and Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
12.3 No waiver by the Seller or any breach of any term of the contract by the Buyer shall be construed as a waiver of any subsequent breach of the same or any other terms of the contract.