1 DEFINITIONS AND INTERPRETATION
In these terms and conditions (Conditions) the following definitions and rules of interpretation shall apply: Business Day means between the hours of 9.00am and 5.00pm on a day between Monday and Friday not being a Bank Holiday in England; Buyer means the other party to this Contract who purchases the Goods from the Seller; Contract means any contract between the Seller and the Buyer for the sale of the Goods and which incorporates these Conditions, the Order and the Order Confirmation; Data Protection Legislation means the General Data Protection Regulation (GDPR); Data Protection Act 2018; ICO Guidance and EU Article 29 Working Party Guidance (to the extent that EU law remains applicable); Delivery Date means the date specified by the Seller when the Goods are to be delivered; Delivery Location means the place where delivery of the Goods is to take place under the Contract as set out in the Order Confirmation; Goods means any goods to be supplied to the Buyer by the Seller under the Contract; Intellectual Property Rights means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable; Order means any order made by the Buyer for the Goods from the Seller; Order Confirmation means the Seller’s written confirmation of the Order for the Goods, incorporating these Conditions; Price means the price set out in the list of prices of the Goods maintained by the Seller as amended from time to time or such other price as the parties may agree in writing plus such carriage, packing, insurance or other charges or interest on such as may be quoted by the Seller or as may apply in accordance with these Conditions; Seller means Quin Systems Ltd., Oaklands Business Centre, Oaklands Park, Wokingham, Berkshire RG41 2FD (company number: 01782394). In these Conditions: references to writing shall include email; a reference to any statute, regulation or other similar instrument shall be construed as including any amendment or subsequent re-enactment thereof; any lists or examples following the word ‘including’ shall be interpreted without limitation to the generality of the preceding words; headings are for ease of reference only.
2 APPLICATION AND FORMATION OF CONTRACT
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek to apply under any purchase order, order confirmation or similar document.
2.2 Each Order shall be deemed to be an offer by the Buyer to purchase the Goods subject to these Conditions and no Order shall be deemed to be accepted by the Seller, and no Contract shall be formed, until and Order Confirmation has been issued by the Seller.
2.3 Any variation to these Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Seller.
2.4 Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods or otherwise which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and, accordingly, the Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed.
2.5 Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
2.6 Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so far as to constitute a sale by sample.
2.7 Nothing in these Conditions shall effect the statutory rights of any Buyer dealing as a consumer.
3 PRICE AND PAYMENT
3.1 Payment of the Price is strictly cash with order unless a credit account has been established with the Seller in which event payment of the Price is due in full and cleared funds 30 days following the date of invoice.
3.2 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date of payment at a rate of 5% per annum above the base rate of the Bank of England from time to time, but at 5% a year for any period when that base rate is below 0%.
3.3 The Seller reserves the right to grant, refuse restrict, cancel or alter credit terms at its sole discretion at any time.
3.4 If payment of the Price or any part thereof is not made by the due date, the Seller shall be entitled to:
3.4.1 require payment in advance of delivery in relation to any Goods not previously delivered;
3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.4.3 appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract) as the Seller may think fit;
3.4.4 terminate the Contract.
4 DELIVERY
4.1 Delivery of the Goods shall take place at the Delivery Location or as otherwise agreed in writing by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
4.2 The Delivery Date is an estimate only. Time for delivery shall not be of the essence of the Contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.
4.3 If the Seller is unable to deliver the Goods for reasons beyond its control, then the Seller shall be entitled to place the Goods in storage until such time as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
4.4 If the Buyer fails to take delivery of the Goods (or fails to give the Seller adequate delivery instructions) at the time stated for delivery then, without prejudice to any other right or remedy available to the Seller: the Goods will be deemed to have been delivered and risk in the Goods will pass to the Buyer (including for loss or damage caused by the Seller’s negligence); and the Seller may store the Goods until actual delivery, and the Buyer shall be responsible and shall indemnify the Seller for such costs, including storage and insurance costs.
4.5 The Seller shall be entitled to deliver the Goods by instalments and where the Goods are so delivered, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other related Contract as repudiated.
5 ACCEPTANCE
5.1 The Seller is a distributor of goods and is, accordingly, unable to advise the Buyer on the fitness of the Goods for any particular purpose. The Buyer is exclusively responsible for detailing the specification of the Goods, for ascertaining that the Goods are fit for the intended use and for determining their ability to function for that purpose.
5.2 The Buyer is required to test Goods upon delivery and shall be deemed to have accepted the Goods 5 Business Days after delivery to the Buyer. Accordingly, no claim for defect, damage or quality will be entertained (without prejudice to the Seller’s other rights pursuant to these Conditions) unless written notice together with all supporting evidence is received by the Seller within 5 Business Days following delivery. After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the Contract.
5.3 The Buyer shall not remove or otherwise interfere with the marks or numbers on the Goods.
5.4 The Buyer shall accept delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that any such discrepancy shall not exceed 5%, the Price to be adjusted pro-rata to the discrepancy.
6 RISK AND TITLE
6.1 Risk of damage or loss of the Goods shall pass to the Buyer in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection, or in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or in accordance with Condition 4.4.
6.2 Notwithstanding delivery and the passing of risk in the Goods, 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 of all other Goods 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, 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 and insured and identified as the Seller’s property.
6.4 Until payment of the Price the Buyer shall be entitled to resell or use the Goods in the 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, and shall keep all such 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.
6.5 Until such time as the property in the Goods passes to the Buyer (and provided that the Goods are still in existence and have not been resold) 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 of any third party where the Goods are stored and repossess the Goods.
6.6 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, but 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.
6.7 The Seller shall be entitled to recover the Price notwithstanding that property in any of the Goods has not passed from the Seller.
7 DEFAULT OR INSOLVENCY OF BUYER
7.1 If the Buyer fails to make payment for the Goods in accordance with these Conditions or commits any other breach of the Contract or if any distress or execution shall be levied upon any of the Buyer’s property or the Goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented of if a receiver, administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this Condition is reasonably apprehended by the Seller all sums outstanding in respect of the Goods shall become payable immediately.
7.2 The Seller may in the circumstances set out in Condition 7.1 above also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to Condition 6 above.
8 WARRANTY
8.1 Subject to Condition 8.2.1, where the Goods are found to be defective, the Seller shall, at its option, repair or replace defective Goods free of charge within the manufacturer’s warranty period (as notified by the Seller to the Buyer from time to time) from the Delivery Date, subject to the following Conditions;
8.1.1 the Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
8.1.2 the defect being due to faulty design, materials or workmanship;
8.1.3 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
8.2 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in Condition 8.1 in any of the following events:
8.2.1 the Buyer makes any further use of such Goods after giving notice in accordance with Condition 8.1.1;
8.2.2 the defect arises because the Buyer failed to follow the Seller’s or manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
8.2.3 the defect arises as a result of the Seller or manufacturer following any drawing, design or specification supplied by the Buyer;
8.2.4 the Buyer alters or repairs such Goods without the written consent of the Seller; or
8.2.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
8.3 The Seller shall be entitled in its absolute discretion to refund the Price of the defective Goods in the event that the Price has already been paid.
8.4 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
8.5 Except where the Buyer deals as a consumer all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are hereby excluded from the Contract to the fullest extent permitted by law.
9 LIABILITY
9.1 Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents, fraud or fraudulent misstatement, breach of the terms implied by section 12 of the Sale of Goods act 1979 or any other liability which cannot legally be limited.
9.2 Subject to Condition 9.1, no liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this Contract, or in respect of any express term of this Contract, where such representations were made or given, or where such term is in relation to:
9.2.1 the correspondence of the Goods with any description or sample;
9.2.2 the quality of the Goods; or
9.2.3 the fitness of the Goods for any purpose whatsoever.
9.3 Subject to Condition 9.1, the Seller shall not be liable in contract, tort (including negligence), statutory duty or otherwise howsoever for any claim, damage, loss or costs in respect of (whether direct or indirect):
9.3.1 loss of profit;
9.3.2 loss of anticipated contracts, business or opportunities; and
9.3.3 any indirect loss or consequential or special loss or damage;
9.4 Subject to Condition 9.1, the Seller’s total liability to the Buyer shall not exceed the Price.
9.5 Intellectual Property Rights
9.6 Where any Goods supplied by the Seller embody, include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms of the applicable end user licence, to the exclusion of all liabilities and obligations on our part.
9.7 The Buyer will indemnify the Seller against all liabilities for infringement of third party Intellectual Property Rights arising from the Seller’s compliance with the Buyer’s specific requirements regarding design or specification for the Goods or arising from the use of the Goods in combination with other products.
9.8 In the event that any of the Goods or the use thereof are held to constitute an infringement of any third party Intellectual Property Rights (other than in accordance with Condition 9.7 above) and the use is thereby prevented, the Seller will at its own expense and option either procure for the Buyer the right to continue using the Goods or replace the same with a non-infringing product, or modify the Goods so that they become non-infringing, or may elect to retake possession of the Goods and refund the Price. Subject to the foregoing, the Seller shall be under no liability to the Buyer for any loss, damage or enquiry, whether direct or indirect, resulting from any intellectual property right infringement of the Goods.
9.9 All Intellectual Property Rights produced from or arising as a result of the performance of any Contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
10 LEGAL
10.1 Notices. Any notice, consent, approval, agreement or other document required pursuant to these Conditions shall, in the absence of any express provision to the contrary be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, or sent by email, to each party required to receive the notice at its registered address, or in the event of service by email, to the Seller at office@quin.co.uk, and to the Buyer at such email address as the Buyer shall notify to the Seller upon the Seller’s request, or such other postal address or email address as may be notified in writing by either party from time to time. Such notice shall be deemed to be served immediately if delivered personally; or within 2 Business Days if served within the UK; or within 5 Business days if served outside the UK; or if sent by email, at the time of transmission, or, if this falls outside the hours of a Business Day, when the Business Day resumes.
10.2 Data protection. To the extent that either party is a ‘data controller’, or ‘data processor’ and needs to process ‘personal data’ (as such terms are defined in the Data Protection Legislation), where such processing is necessary for the performance of this Contract each party shall comply with the provisions of the Data Protection Legislation to the extent that it is applicable. Nothing in these Conditions shall exclude or limit either party’s direct liability under the Data Protection Legislation.
10.3 Force Majeure. The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery, shortage or unavailability of raw materials from a natural source of supply, epidemics and pandemics (including the COVID-19 pandemic), and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.
10.4 Relationship of Parties. Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.
10.5 Assignment and Sub-Contracting. The Seller may assign or sub-contract all or any part of its obligations under the Contract to any person, firm or company. The Buyer shall not be entitled to assign, sub-contract or otherwise dispose of the Contract or any part of it without the prior written consent of the Seller.
10.6 Exclusion of third party rights. Except as otherwise provided in these Conditions or the Contract, a person who is not a party to the Contract shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions or the Contract.
10.7 Waiver. The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions of this Agreement.
10.8 Severability. If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
10.9 Set off. The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever. The Seller shall at any time be entitled to deduct from or set off against monies payable by it to the Buyer such sums which the Buyer owes the Seller.
10.10 Entire Agreement. These Conditions and any documents incorporating them or incorporated by them constitute the entire agreement and understanding between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Conditions.
10.11 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusion jurisdiction of the English courts.