1.Interpretation
1.1 In these Conditions:
"BUYER" means the person whose details are set out in the Schedule overleaf
"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
"GOODS" means the goods (including any installment of the goods or any parts for them) set out in the Schedule overleaf
"SERVICES" means the Services which the Seller is to supply set out in the Schedule overleaf
"SELLER" means Callmaster Mobile Limited (registered in England under number 6506669).
"WRITING" includes facsimile transmission or email.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.Basis of the Sale
2.1 The Seller shall sell and supply and the Buyer shall purchase and take the Goods and Services subject to these Conditions, which shall govern the contract to the exclusion of any other terms and conditions
subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer
acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation 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 suitability of the Services 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 or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction
without any liability on the part of the Seller.
3.Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary
information relating to the Goods or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of any specification for the Goods and Services shall be those set out in the Schedule.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss,
damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement or any patent, copyright, design,
trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods or Services which are required to conform with any applicable safety or other statutory requirements or which do not
materially affect their quality or performance.
3.6 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 loss
(including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4.Price of the Goods and Services
4.1 The price of the Goods and Services shall be the price set out in the Schedule overleaf. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be
altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods and Services to reflect any increase in the cost to the Seller which is due to:
4.2.1 any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other
costs of manufacture),
4.2.2 any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or
4.2.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 In a contract for the sale of Goods only except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller,
all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport,
packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.5 In the event that the Customer is deemed eligible for ‘Cashback’ by the Seller the following rules will apply:
4.5.1 The customer claiming for ‘Cashback’ reimbursement will be responsible for any tax implications there may be. As part of applying for and receiving a cash back reimbursement, it is the responsibility of
VAT registered companies to consider and act upon the following statement from HMRC:
‘If you are VAT registered and you receive ‘Cashback’ this reduces the taxable value of your purchase and you must reduce your input tax accordingly. HMRC will assess for over-claimed input tax where these
adjustments are not made.’
4.5.2 The Seller will be responsible for the cost of arranging your Cashback reimbursement, but the Customer will be responsible for all other costs associated with the refund process.
4.5.3 The Seller reserves the right to withhold a Cashback reimbursement if there is cause to believe a claim is made other than in accordance with these conditions.
4.5.4 This cash back reimbursement will not affect your statutory rights.
5.Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of Goods or
completion of the Services, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods or allow the Seller to provide or complete the Services, in which event the
Seller shall be entitled to invoice the Buyer for the price at any time after:
5.1.1 the Seller has notified the Buyer that the Goods are ready for collection
5.1.2 the Seller has tendered delivery of the Goods
5.1.3 the Seller has been prevented or hindered by the Buyer from commencing or completing the Services.
5.2 The Buyer shall pay the price of the Goods and Services within 30 days of the date of the Seller's invoice, notwithstanding that delivery may not have taken place and the property in the Goods has passed to
the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment under this contract or any other contract between the Seller and the Buyer on the due date then, without prejudice to any other right or remedy available to the Seller,
the Seller shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries or work
5.3.2 appropriate any payment made by the Buyer to such of the Goods or Services (or the Goods or Services supplied under any other contract between the Buyer
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum above Midland Bank base rate from time to time, until payment in full is made (a
part of a month being treated as a full month for the purpose of calculating interest).
5.3.4 sell any of the Goods held by or coming into the possession of the Seller and appropriate any proceeds to such of the Goods or Services (or the Goods or Services supplied under any other contract between
the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer)
6. Delivery and Performance
6.1 In a contract for the sale of Goods only delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are
ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 In a contract for the sale of Goods and Services delivery shall be made by the Seller delivery the Goods to the place where the Services are to be performed.
6.3 Any dates quoted for delivery of the Goods or performance of the Services are approximate only and the Seller shall not be liable for any delay howsoever caused. Time for delivery or performance shall not
be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered or the Services performed by the Seller in advance of the quoted delivery date upon giving reasonable notice to the
Buyer.
6.4 The Buyer shall accept delivery of the Goods or performance of the Services even if they are late and late delivery or performance shall not entitle the Buyer to terminate the Contract.
6.5 If the Seller fails to deliver the Goods or perform the Services for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer,
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 or Services to replace those not delivered over the price of the Goods or
Services.
6.6 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 (otherwise than by reason of any cause beyond the Buyer's reasonable
control or by reason
of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2 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 over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.7 If the contract is for the supply of Goods and Services and as a result of action or omission on the part of the Buyer the Seller is prevented from supplying the Services the Buyer shall be bound to take
delivery of any Goods included in the contract and the provisions of clause 6.6. apply.
7.Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 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
7.1.2 in the case of Goods to be delivered otherwise then at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, at the time when the Seller has tendered
delivery of the Goods.
7.2 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 Services and all other Goods and Services agreed to be sold by the Seller to the Buyer under this or any other contract for which payment is then due.
7.3 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.
7.4 Until such time as the property in the Goods passes to the Buyer, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but whilst the same is permitted at law and
without creating a charge registerable under English Law, 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 moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.5 Until such time as the property in the Goods passes to the Buyer (and provided 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 any third party where the Goods are stored or used and repossess the Goods.
7.6 Where any Goods have been incorporated in any property of the Buyer the Buyer hereby expressly authorises the Seller to remove the Goods for the purpose of recovering possession.
7.7 The Buyer shall not 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 do all moneys owing by the
Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.Warranties and liability
8.1 Subject to the conditions set out below the Seller warrants that the Services will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period
of twelve months from the date of completion.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or
in writing) misuse or alteration or repair of the Goods without the Seller's approval;
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is
given by the manufacturer to the Seller.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning the Unfair Contract Terms Act 1977), all warranties, conditions
or other terms express or implied by the statute or common law are excluded to the fullest extent permitted by law save for the provisions as to title contained in Sale of Goods Act 1979 ss. 12; Supply of Goods
(Implied terms) Act 1973 ss. 8; and, Supply of Goods and Services Act 1982 ss.2 and 7.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) the Statutory rights of the Buyer contained in the Sale of Goods Act 1979 ss.13, 14, and 15; Supply of
Goods
(Implied terms) Act 1973 ss. 9, 10, and 11; and, Supply of Goods and Services Act 1982 ss. 3, 4, 5, 8, 9, and 10 are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or conditions of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) 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, and the Buyer shall be bound to pay
the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of any of the Goods or services which is based on any defect in the quality or condition of the Goods or Services or their failure to meet specification is notified to the Seller in
accordance with these Conditions, the Seller shall entitled to replace the Goods (or the part in question) or remedy the defect in the of charge or, at the Seller's sole discretion, refund to the Buyer the price of the
Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.7 The Seller's liability to the Buyer or any third party under this contract save in respect of death or personal injury shall not in any event exceed the contract price and the Buyer agrees to indemnify the Seller
against any claims made against the Seller which exceed the contract price.
8.8 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 or their use or resale by the Buyer, except
as expressly provided in these Conditions.
8.9 The Buyer agrees to indemnify the Seller against any damages, losses and claims or expenses incurred by the Seller in respect of any claim brought against the Seller by any third party for:
8.9.1 any loss, injury or damage wholly or partly caused by the Goods of Services or their use;
8.9.2 any loss, injury or damage in any way connected with the performance of the Contract provided that this shall not require the Buyer to indemnify the Seller against any liability for the Seller's own
negligence.
8.10 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 obligation, 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:
8.10.1 Act of God, explosion, flood, tempest, fire or accident;
8.10.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.10.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.10.4 import or export regulations or embargoes;
8.10.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.10.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.10.7 power failure or breakdown in machinery.
9.Third Party Contracts
9.1 The Seller agrees to forward any contract and documentation completed by the Buyer relating to the supply of services by third parties (such as airtime or connection to the network for mobile phones; or
exchange lines for office or domestic telephone systems) to the appropriate authority as soon as possible.
9.2 The Seller has no control over the third party suppliers referred to in clause 9.1 and does not warrant that any such services will be made available to the Buyer or, if made available, that they will continue to
be made available.
10.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 that 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 notifies 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 or work under the Contract
without any liability to the Buyer, and if the Goods or Services or any of them have been delivered or performed but not paid for the price shall become immediately due and payable notwithstanding any previous
agreement or arrangement to the contrary.
11.General
11.1 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.
11.2 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.
11.3 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.
11.4 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the
application or either party by the President for the time being of 8.7.96 and in future.
11.5 The Contract shall be governed by the laws of England.