1. Definitions | 2. The contract | 3. Services | 4 .Goods | 5. Packaging | 6. Price | 7. Payment | 8. Delivery | 9. Receipt and return of item to the customer |10. Warranty | 11. Title of property and risk | 12. Liabilities | 13. Non-Payment | 14. Customer Insolvency | 15. Force Majeure | 16. General
In these General Conditions Of Business the following meanings shall apply:
- "We" and "Us" means TestLink Services Limited (Company No: 02598460) and Our shall be interpreted accordingly.
- "You" means the person their employees or agents seeking Repair Services or to purchase Goods from Us and Your shall be interpreted accordingly.
- "The Goods" means new or used goods parts or accessories to be supplied by Us including parts used in Repair Services and services provided by Us which are not Repair Services.
- "The Repair Services" means any act or work carried out by Us, including refurbishment, on Equipment at Your request or in pursuance of Your instructions.
- "The Equipment" means Your or third party's equipment and accessories delivered to Us for repair.
- "Customer" means the party having the right to enforce the supply by TestLink Services Limited of Goods and/or the Repair Services
- "Contract" means a contract under the terms of which TestLink Services Limited is liable to supply Goods and/or the Repair Services.
IF YOU DEAL AS A CUSTOMER ANY PROVISION OF THESE TERMS WHICH IS OF NO EFFECT SHALL NOT APPLY. THE STATUTORY RIGHTS OF CUSTOMERS ARE NOT AFFECTED BY THESE TERMS.
2.1 All orders are accepted by Us only under these General Conditions of Business that may not be altered other than with Our written agreement.
2.2 Quotations are invitations to treat only
2.3 Orders once accepted by Us may not be suspended or cancelled without Our prior consent in writing. You will indemnify Us against all losses including loss of profit damages costs and expenses We incur as a result of Our accepting that cancellation.
2.4 We shall not be liable for any misrepresentation made by Us Our employees or agents to You as to the nature of suitability of the Repair Services or the condition of the Goods unless the representation is made or confirmed.
2.4.1 by Our Help Desk; /or
2.4.2 in writing by Us; /or
2.4.3 is fraudulent.
2.5 Except when Goods are supplied on Our express advice given in writing that they are suitable for any particular purpose, it shall not be a term of a Contract that Goods are sold as fit for any particular purpose and this is notwithstanding that We may have, or be deemed to have, knowledge of the purpose for which the Goods are required.
2.6 We will not be liable under Clause 2.4 to the extent that such liability arises from material information withheld concealed or misrepresented by You.
2.7 Whilst we take reasonable care to ensure that the intellectual property rights of third parties are preserved we give no warranty as to the intellectual property rights of any software application packages that may accompany the Goods.
2.7 When a term of a quotation or any other express term of a Contract is found to be in conflict with any one or more of these General Conditions of Business, the terms of the quotation or the other express term of the Contract as the case may be shall unless the context otherwise requires, prevail.
3.1 The Contract will be made when We commence Repair Services after Your authorised representative has instructed Us in writing to undertake the Repair Services set out in Our quotation.
3.2 If you do not accept a quotation We reserve the right to make a fault analysis and handling charge.
3.3 Repair Services shall be carried out with reasonable care and skill and so far as reasonably and economically possible in such a manner as to comply with the manufacturer's technical specification where such information is available.
3.4 We reserve the right not to effect repairs upon Equipment which in Our view has been improperly used or cannibalised.
3.5 We reserve the right to replace the whole or any parts or accessories of the Equipment and to use second user or reconditioned parts Where the Equipment is irreparable or beyond economic repair We may offer alternative Goods subject to Your agreement.
3.6 Unless specifically agreed in advance, We do not correct software defects nor load or reload software applications. You are strongly recommended to adopt and implement comprehensive back up procedures as We will not be liable for any damages whatsoever whether direct or indirect (including any liability to any third party) resulting from the loss of or damage to data of software application occurring as a result of the Repair Service whether such loss or damage is caused by Our negligence or otherwise howsoever.
3.7 We hereby undertake to repair and make available to the customer, any Item returned under this Agreement. Unless specifically agreed in advance, rectification of design faults is not covered by this Agreement. Furthermore, any Item repaired under this Agreement shall be returned to the Customer at the same modification level as submitted to us by the Customer, unless otherwise agreed between the parties and subject to prices negotiated within this Agreement or where a modification is required to rectify the reported fault.
3.8 All repairs and work carried out under these Conditions will be performed in accordance with our Quality Plan and ISO 9001. The customer has the right to carry out periodic audits at times mutually agreeable to both parties.
3.9 Quoted times are always expressed in working days, which for the purpose of this Agreement shall mean Monday to Fridays, excluding UK bank or other public holidays.
3.10 Unless specifically agreed in advance, We do not undertake to erase any data from any hard drive of an item being repaired as part of the repair service.
4.1 A Contract for the supply of Goods shall not come into existence until We receive an order or other written instruction signed by Your authorised representative accepting our quotation and these Terms and Conditions of Business
4.2 Unless agreed by Us in writing and endorsed on Our consignment note Goods are not supplied on a sale or return or trial basis.
Both the Customer and Us shall ensure that the Item is suitably packed and securely fixed to ensure safety and protection in transit. In the case of exposed electro-static devices, anti-static bags must be used wherever appropriate.
6.1 The price of the Goods and/or Repair Services shall be as stated or quoted and includes the cost of all parts and labour but is exclusive of VAT. Transit Liability Insurance is included where we quote for carriage.
6.2 An additional charge will be made if:
6.2.1 payment is made by Credit or Charge Card
6.2.2 You request a method of delivery other than road freight carrier on 'Next Day' delivery.
7.1 If We have agreed in writing to give You credit all accounts are due for payment 30 days after the date of Our invoices. In all other cases payment is due on demand and Goods and/or Equipment will not be released until we are in receipt of cleared funds for all sums due to Us.
7.2 Credit is granted and may be reviewed at any time in Our discretion and may be withdrawn by us without either giving any reason for so doing or thereby incurring any liability to the Customer We reserve the right to refuse to execute any order or contract if the arrangements for payment of Your credit rating is not satisfactory to Us.
7.3 If the Customer takes Goods and/or Services from Us in excess of the Customer's credit limit we may require payment on demand for such excess goods.
7.4 You may not withhold payment of any invoice or other amount due to Us by reason of any right of set off or counterclaim which You may have or allege to have for any reason whatsoever
8.1 When We are required to deliver Goods we shall have the sole discretion as to the mode of transport to be adopted.
8.2 Delivery will be effected when the Goods or Equipment are delivered to the address/delivery point specified by You and the risk in the Goods or Equipment shall pass to You on delivery.
8.3 Delivery dates are given in good faith but are estimates only. Time for delivery shall not be of the essence of the contract.
8.4 We shall not be liable for any damages whatsoever whether direct or indirect (including for the avoidance of doubt any liability to any third party resulting from any delay by Us in delivery of the Goods or failure to deliver the Goods in a reasonable time whether such a delay or failure is caused by Our negligence.
9.1 Where previously agreed, We will return the Item to the Customer carriage and insurance paid and packed and secured in accordance with Paragraph 5 (packing) to the address stated on the customer's delivery note or order
9.2 Unless the Customer shall within five (5) working days of receipt of the repaired Item, give written advice of rejection, the Customer shall be deemed to have accepted the repair.
9.3 Signature of the carriers delivery note indicates that the Goods have been delivered and accepted in good condition
9.4 Any damages/loss must be reported to Us by fax within 24 hours of receipt of delivery. The original packaging must be retained with the article until further instructions are provided. Please be aware that if the consignment has been signed stating that the delivery was received in good condition We will be unable to uphold any claim.
9.5 You shall inspect the Goods and/or Equipment at the place and time of unloading.
9.6 Our liability for short delivery is limited to making good the shortage. We shall not be liable for any damages whatsoever for short delivery howsoever caused and You remain liable to pay the full invoice price of all Goods delivered or available for delivery. Any other claim for damages is subject to Clause 12.
9.7 Unless You retain and make available for inspection the Goods and/or Equipment and their packaging we will not be liable for any loss or damage in transit.
10.1 The liability of Us under Our warranty in relation to Goods shall be subject to the Goods having been used and maintained wholly in accordance with the manufacturer's instructions and to their not having been repaired or altered other than by or having been previously authorised by Us.
10.2 We will warrant all repairs to be free from defects in workmanship, materials or for ninety (90) days (unless otherwise specified) from the date of Item delivery to the Customer (unless otherwise specified) or for the balance of any previous Warranty, whichever is the longer.
10.3 Missing parts, physical damage, modification, attempted repairs (unless previously authorised by Us), or any misuse (unless attributable to us), shall void the original warranty or ninety (90) day (unless another period is specified) repair warranty and any subsequent repair will be quoted for when the Item has been received from the Customer.
10.4 We warrant that replacement components and sub-assemblies fitted to a repaired Item shall have, in all material respects, at least equivalent functionality, geometry and compatibility to the replaced components or sub-assemblies.
10.5 We will repair any item where the warranty is confirmed as valid at no cost to the Customer. Any product that cannot be repaired and where a complete replacement is required will be advised to the Customer and the Customer given the option to: receive a quotation for a complete replacement less the cost of the original repair: or alternatively to receive a credit for the original cost of repair and the item returned to the Customer.
11.1 The title to the Goods shall remain with Us until You pay all sums owing to Us whether in respect of this contract or otherwise. The risk in Goods supplied by Us shall pass to the customer on delivery of the Goods to or to the order of the Customer in accordance with the terms of the Contract.
11.2 We shall be entitled to recover the price of the Goods including VAT even though the property in any of the goods remain with Us.
11.3 We shall be entitled at any time to recover any or all of the Goods in Your possession to which We have title and for that purpose You will on request deliver up Equipment containing Goods and We Our servants or agents may with such transport as is necessary enter upon any premises occupied by You or to which You have access and where the Goods may be or are believed to be situated.
11.4 When payment for Goods is overdue or the Customer suffers distress or execution to be levied against his or its effects, makes an arrangement or composition with creditors or, being a corporate body, enters into liquidation (otherwise than for the purpose of amalgamating or reconstruction where the corporate body, as amalgamated, accepts in full the Customer's liability of pay for the Goods), or has a receiver appointed for the whole or any part of its undertaking or, being an individual, has a receiving order in bankruptcy made against him, then:
a)If the Customer remains in possession of the Goods, whether or not the Customer has sold them We shall be entitled to recover the Goods from the Customer or
b)If the Customer has parted with possession of the Goods by way of sale, whether or not the Goods have been mixed with or incorporated into other Goods, the Customer having sold them as fiduciary bailee, shall hold in trust for Us so much of the proceeds of sale of the Goods as represents the Customer's liability to Us in respect of them.
12.1 In this Clause "the Defect" shall mean the condition and/or any attribute of the Goods and or any condition or circumstance arising from Our provision of Repair Services and/or any other circumstances which but for the effect of these Terms would have entitled You to damages.
12.2 Nothing in these Terms shall exclude or restrict Our liability for death or personal injury resulting from Our negligence or Our liability for fraudulent misrepresentation.
12.3 If You deal as a Customer any provision of these Terms which is of no effect shall not apply. The Statutory rights of a Customer are not affected by these Terms.
12.4 Subject to Clauses 12.2 and 12.3 of these Terms We shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever. Instead of liability in damages We undertake liability under Clause 12.5 below.
12.5 Where but for the effect of Clause 12.4 of these Terms You would have been entitled to damages against Us We shall not be liable to pay damages but subject to the conditions set out in Clause 12.6 below shall in Our sole discretion either repair the Goods at Our own expense or supply replacement Goods free of charge or re-perform the Repair Services free of charge or refund all (or where appropriate part) of the price paid for the relevant Goods or Repair Services.
12.6 We will not be liable under Clause 12.5:
if the Defect arises from fair wear and tear
(a) if the Defect arises from Your damage negligence mis-use alteration or repair of the Goods and/or Equipment or abnormal working conditions.
(b) unless after discovery of the Defect We are given a reasonable opportunity to inspect the Goods and/or Equipment before they are in any way interfered with.
(c) unless the Defect is discovered within the period agreed at the time of sale or repair (which unless otherwise agreed, period commences on the date of delivery of the Goods and/or Equipment) and We are given written notice of the Defect within 5 working days of it being discovered.
12.7 If the Goods are not manufactured by us or have been processed by a third party whether at Our or Your request Our liability in respect of any defect in workmanship or materials of the Goods will be limited to such rights against the manufacturer or the third party as We may have in respect of those Goods and We will assign to You any assignable rights We may have from or against the manufacturer or third party.
12.8 Unless specifically agreed in advance, Subject to Clauses 9.2 and 9.3 We shall not be liable by reason of misrepresentation (unless fraudulent) or any breach of warranty condition or other terms express or implied or any breach of duty (common law or statutory) or negligence or otherwise howsoever and whatever the cause thereof:
(a) for any loss of profit, business, contracts, revenues or anticipated savings, or
(b) for any special, indirect or consequential damage of any nature whatsoever.
12.9 Except where You deal as a Customer You will unconditionally fully and effectively indemnify Us against all loss damages penalties costs on an indemnity basis and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim by any third party arising from the supply or use of the Goods. This indemnity will be reduced in proportion of the extent that such a loss damage costs and expenses are due to Our negligence.
12.10 Without prejudice to any other provisions in these Terms in any event Our total liability for any one claim or for the total of all claims arising from any one act of default on Our part (whether arising from Our negligence or otherwise) shall not exceed the price of the goods and/or the Repair Services the subject matter of any claim or claims or such sum as is the limit of liability laid down by Our insurers in respect of such claim or claims whichever is the greater.
13.1 If You fail to pay any invoice or any sum due to Us under any contract on the due date or Your credit limit is exceeded or there is a material change in Your constitution or You commit a material breach of this contract and fail to remedy that breach after being requested to do so all sums outstanding between You and Us under this and any other contract shall become immediately due and payable and We shall be entitled to do any one or more of the following (without prejudice to any other right or remedy We may have):-
(a) require payment in cleared funds in advance of further deliveries or the provision of further Repair Services.
(b) charge and recover from the Customer interest on the monies outstanding at the rate of 4 per cent above Barclays Bank Plc's base rate in force from time to time from the due date of payment after as well as before judgement.
(c) cancel or suspend its performance of the Contract to which the invoice relates .
(d) without prejudice to the generality of Clause 9 of these Terms exercise any of Our rights pursuant to that Clause.
(e) terminate this or any other contract with You without liability on Our part.
13.2 Except where You deal as a Customer You shall reimburse us costs including legal costs on an indemnity basis which We incur in seeking legal advice or taking legal proceedings to enforce Our rights under this contract including but not limited to recovery of any sums due.
14.1 Except when payment for Goods to be supplied has been made or secured in advance of their delivery to or to the order of the Customer We shall be entitled to withdraw from a Contract if and when the Customer suffers distress or execution to be levied against his or its goods or effects, makes an arrangement or composition with creditors, enters into liquidation (otherwise than for the purpose of amalgamation or reconstruction) has a receiver appointed for the whole or any part of its undertaking, or if a receiving order in bankruptcy is made against him. When We elect to withdraw from a Contract in any such circumstances, We shall thenceforth cease to have any liability to the Customer thereunder but shall remain entitled to claim from the Customer a due proportion of the Contract price in respect of such part of the Contract as We shall have performed.
15.1 If either Party is prevented or hindered from carrying out its obligations hereunder by circumstances beyond its reasonable control, then the performance of such obligations shall be suspended for such time as shall be reasonable in the circumstances and the party affected shall not be liable for any delays occasioned thereby.
15.2 Furthermore, We will not be liable for any delay in carrying out this Contract that is due to obsolescence or unavailability of components required by Us to perform the repair work.
15.3 In the event that We are prevented from providing the Repair Services as aforesaid for a continuous period of two (2) months or more, then the Customer may at any time after the expiration of such two (2) month period terminate the Agreement by written notice, provided that We continue to be so prevented from providing the Repair Services at the time such notice is given. We shall return to the Customer any remaining unused monies at the time such termination comes into effect.
16.1 The construction, validity and performance of a Contract shall be governed and interpreted according to the Law of England and You agree to submit to the exclusive jurisdiction of the English Courts in any dispute or difference arising between the customer and Us in relation to a Contract
16.2 The headings in these terms are for convenience only and shall not affect their interpretation.
16.3 Except as provided otherwise in these Terms We shall not be liable for any delays or failures to perform any of Our obligations under this contract due to any cause beyond Our reasonable control including industrial action.
16.4 Failure by Us to enforce a term of a Contract as soon as it may be enforced shall not prevent the subsequent enforcement of that or any other term of the Contract.
16.5. The non-enforcement by Us of any of the terms of a Contract shall not constitute a waiver unless this is stated by Us in writing.
16.6 If any clause or sub-clause of these Terms is held by a competent authority to be invalid or unenforceable the validity of the other clauses and sub-clauses of these Terms shall not be affected and they shall remain in full force and effect.
16.7 We may assign or sub contract all or any of Our obligations under this contract to a competent third party.
16.8 Termination of this contract shall not affect rights and obligations, which have already accrued at the time of termination.
16.9 A person (a "third party") who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such third party. This does not affect any right or remedy of such third party, which exists or is available irrespective of the said Act.