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In these terms:
“Actual Delivery Date” means the date on which the Equipment is delivered to the Buyer’s Premises or such other place nominated by the Buyer or made available for collection by the Buyer
“Buyer” means the person who accepts our written quotation for the sale of the Equipment or
whose written order for the Equipment is accepted by us
“Buyer’s Premises” means the premises of the Buyer or such other premises nominated by the Buyer to which the Equipment shall be delivered
“Contract” means any contract for the sale and purchase of the Equipment and or Services under
“Equipment” means the hardware equipment (including any instalment of the equipment or any
parts for it) or software products which we are to supply in accordance with these Terms
“Place of Use” means that part of the Buyer’s Premises where the Equipment is to be installed and /
“Services” means the provision of services in respect of installation, commissioning, repairing and
“Terms” means the standard terms and conditions of sale set out in this document and (unless
the context otherwise requires) includes any special terms agreed in Writing between us and the Buyer
“The Company, we,us, our etc.” means Celerity Limited, or our subsidiary Celerity Scotland Limited,
11 St George’s Court, St George’s Park, Kirkham, Lancashire, PR4 2EF
“Writing” and any similar expression, includes facsimile transmission and comparable means of
1. General / Scope of Validity
1.1. Our Terms apply exclusively to the Contract; we do not accept the Buyer's terms and conditions or any other terms and conditions inconsistent with ours unless we expressly approve of such terms in writing and signed by a Director of the Company.
1.2. All supplies of Equipment made by us to the Buyer shall be subject to these Terms including repeat orders.
2. Quotation / Conclusion of Contract
2.1 Our quotations are subject to change without notice unless otherwise stated in the order confirmation.
2.2 No order submitted by the Buyer shall be deemed to be accepted by us unless and until it has been confirmed by us through our authorised representative. In the absence of an order confirmation the order is deemed to be accepted by our delivery of the Equipment or the provision of the Services or any part thereof
3. Price / Terms of Payment
3.1 All prices and quotations are quoted in pounds sterling, uninsured, without duty paid and exclusive of VAT (unless otherwise stated) .
3.2 Shipping, additional packaging and insurance will be charged as shown on the quotation. Should the Buyer elect a particular mode of shipment or stipulate additional insurance cover we shall arrange such cover at the Buyer’s expense and risk.
3.3 We shall be entitled to charge a minimum cancellation fee equal to 1% of the Purchase Price in respect of any cancelled order and where we suffer losses in excess of the cancellation fee, we reserve the right to claim damages in respect of the full amount of our loss.
3.4 We shall be entitled to charge a fee of £30 for orders under £750.
3.5 Unless otherwise agreed in writing and signed by a director, the purchase price is due for payment net (without deductions) within 30 days after the invoice date. Should the Buyer be in arrears with payment, we shall be entitled to charge interest in the amount of 4% over the Bank of England base interest rate until payment in full is made. Time for payment for the Equipment shall be of the essence.
3.6 We reserve the right to request payment by cash in advance or on delivery in appropriate
3.7 The Buyer shall not be entitled to exercise any right of set off it may have against us in respect of any sums due under the Contract.
4. Delivery / Delivery Period
4.1 Delivery dates and delivery deadlines are approximate unless otherwise agreed upon expressly in writing and we shall not be liable for any delay in delivery of the Equipment however caused. A new delivery date will be agreed in case of subsequent alterations to the Contract. The delivery date shall be deemed met if the Equipment is dispatched to or left for collection at the Buyer’s Premises or such other place nominated by the Buyer on the agreed date.
4.2 We shall be entitled to delay or suspend delivery if the Buyer is in default of its payment obligations to us.
4.3 If the Buyer fails to take delivery of the Equipment or fails to give us adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control) then, without limiting any other right or remedy available to us, we may:
4.3.1 store the Equipment until actual delivery and charge the Buyer for the reasonable costs
(including insurance) of storage; or
4.3.2 sell the Equipment at the best price readily available 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
4.4 At delivery the Buyer shall make available to us or our agents free of charge such labour and equipment as we shall have previously specified in writing and which is reasonably necessary to perform our duties hereunder
5. Preparation of the Place of Use
5.1 We shall where appropriate make available to the Buyer all relevant documentation for the preparation of the Place of Use in sufficient time to enable it to comply with its obligations under 5.2 below.
5.2 The Buyer shall complete the preparation of the Place of Use in accordance with the relevant
documentation on or before the Delivery Date. If a site survey is deemed necessary, this can be undertaken and may result in a cost to the Buyer. Preparation of the Place of Use may include providing access, the widening of doors and windows, the provision of such equipment and facilities and the making of all other structural alterations of the Buyer’s premises necessary to permit delivery of the Equipment.
5.3 Provided we have complied with our delivery obligations under clause 4.1 above we shall have no liability to the Buyer in respect of late or partial delivery where the same results from the Buyer’s
failure to prepare the Place of Use in accordance with clause 5.2 above in a timely manner.
6.1 If we agree to install the Equipment, we shall commence installation of the Equipment at the Place of Use on a Mutually Agreed Date or as soon as possible thereafter and shall inform the Buyer when such installation is completed.
7. Title to and risk in the Equipment and Documentation
7.1 Title to the Equipment and Documentation shall not pass to the Buyer until all monies due and owing to us under this agreement (and any special costs payable pursuant to clause 3.2 above) and value added tax thereon have been paid in full (the ‘Payment Date’).
7.2 Until the Payment Date the Buyer shall not be entitled to sell lease charge assign by way of security or encumber the Equipment and Documentation and the Buyer shall hold any proceeds of sale or other consideration in respect of the Equipment and Documentation as our trustee.
7.3 If either:
7.3.1 the Buyer fails to effect payment in full of all sums due hereunder by the Payment Date; or
7.3.2 prior to the Payment Date the Buyer convenes a meeting of its creditors or a proposal is made
for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other
composition scheme or arrangement with (or assignment for the benefit of) the Buyer’s
creditors or if the Buyer is unable to pay its debts within the meaning of section 123 of the
Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed
in respect of all or any part of the business or assets of the Buyer or if a meeting is convened for
the purpose of considering a resolution or other steps are taken for the winding up of the Buyer
or for the making of an administration order (otherwise then for the purpose of an
amalgamation or reconstruction)then we (without prejudice to any other legal remedies we may have) shall at any time thereafter be entitled to enter upon the Place of Use (without notice to the Buyer) and remove the Equipment and Documentation and may sever the Equipment from anything to which it is attached without being liable for any damage caused thereby and without prejudice to any other remedy that may be available to us.
7.4 Risk in the Equipment and Documentation shall pass to the Buyer upon the Actual Delivery Date and where the Buyer delays delivery when the Equipment is segregated from the consignment.
7.5 With effect from the Actual Delivery Date up to and including the Payment Date the Buyer shall insure the Equipment for its full replacement value with a reputable insurance company and shall provide a copy of the insurance certificate to the Company on request
8.1 Subject to the limitations upon our liability set out in clause 9 below we warrant to the Buyer that:
8.1.1 the Equipment will, for a period specified by the vendor from the Actual Delivery Date, be free from defects in or arising from design materials workmanship delivery or installation; and
8.1.2 we will perform the Services with reasonable care and skill;
8.2 The Buyer shall give notice in Writing to us as soon as it is reasonably able upon becoming aware of a breach of warranty.
8.3 We shall as soon as we are reasonably able investigate any alleged breach of warranty and in the case of a breach of warranty falling within clause 8.1.1 above shall remedy the same free of charge by:
8.3.1 carrying out such repairs, modifications or alterations to the Equipment; and/or
8.3.2 replacing the Equipment or such component parts as we shall in our absolute discretion think fit.
8.4 We will not be responsible for any problem arising from or caused by any modification (whether by alteration, deletion, addition or otherwise) made to the Equipment or any part thereof other than with our prior written consent. If any unauthorised modification is made then, without prejudice to any other rights and remedies this Warranty will be null and void.
8.5 Any Equipment or component parts of the Equipment re-placed by us pursuant to clause 8.3.2 above (‘Replaced Equipment’) shall upon replacement become our property and the Buyer warrants that its title to such Replaced Equipment shall be free and unencumbered or that it shall have all necessary consents and authorities to part with possession of the Replaced Equipment.
8.6 Subject to the foregoing and with the exception of the condition and the warranties implied by section 12 of the Sale of Goods Act 1979 all conditions warranties terms and undertakings express or implied Standard Terms and Conditions - this document is electronically controlled and is valid only on day of printing statutory or otherwise in respect of the Equipment the Documentation and the provision of the Services hereby excluded.
9. Limitation of liability
9.1 The following provisions set out our entire liability (including any liability for the acts and omissions of our employees’ agents and sub-contractors) to the Buyer in respect of:
9.1.1 any breach of our contractual obligations arising under this agreement; and
9.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with this agreement.
AND THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 9
9.2 Any act or omission on our part or our employees agents or sub-contractors falling within clause 9.1 above shall for the purposes of this clause 9 be known as an ‘Event of Default’.
9.3 Our liability to the Buyer for:
9.3.1 death or injury resulting from our own or that of our employees’ agents’ or subcontractors’
9.3.2 all damage suffered by the Buyer as a result of the implied statutory undertakings as to title
quiet possession and freedom from encumbrances
shall not be limited.
9.4 Subject to the limit set out in clause 9.5.1 below we shall accept liability to the Buyer in respect of damage to the tangible property of the Buyer resulting from our negligence or that of our employees agents and sub-contractors.
9.5 Subject to the provisions of clause 9.3 above the Company’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to:
9.5.1 £1,000,000 in the case of an Event of Default falling within clause 9.4 above; and
9.5.2 the Purchase Price of the Equipment in the case of any other Event of Default
9.6 Subject to clause 9.3 above we shall not be liable to the Buyer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or we had been advised of the possibility of the Buyer incurring the same.
9.7 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
9.8 The Buyer hereby agrees to afford us not less than 30 days in which to remedy any Event of Default hereunder.
9.9 Except in the case of an Event of Default arising under clause 9.3 above we shall have no liability to the Buyer in respect of any Event of Default unless the Buyer shall have served notice of the same upon us within 1 year of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
9.10 Nothing in this clause 9 shall confer any right or remedy upon the Buyer to which it would not
otherwise be legally entitled.
10.1 It is the practice of Manufacturers and/or Suppliers of Equipment consisting of or including computer software products or copies thereof (“proprietary software”) to retain title to any copyright or other intellectual property rights therein (“the rights”). We only transfer to the Buyer such title in the software as we may have and, save as herein provided for, no warranty is given in respect of the exercise by any third party of such rights against the Buyer. Subject to any express licence in Writing entered into by the Buyer with us or with the owner of such rights, the limit of the right or interest in any such proprietary software which the Buyer shall acquire shall be such right or licence to use or enjoy such proprietary software as may be permitted or conferred by us or, otherwise, by the owner of the right, and which is either manifest from the proprietary software concerned (or any document attached to or accompanying such proprietary software) or which has otherwise been notified by us to the Buyer in Writing.
IBM Business Partners are required to provide the IBM Licence Agreement for Machine Codes to the End User before the sale of an IBM System Storage, Power System or zSystems (Including LinuxONE) hardware machine is finalised. For your reference, the IBM Licence Agreement for machine codes can be found on the following link: http://www.01.ibm.com/support/docview.wss?uid=isg3T1025361
11.1 If training is required we shall provide to the Buyer the training services details of which (including the cost) shall be set out in Writing.
12.1 The Documentation prepared and provided by us to the Buyer hereunder is our copyright and contains our confidential information.
12.2 The Buyer shall take all such steps as shall be necessary to protect our copyright and confidential information in the Documentation and without prejudice to the generality of the foregoing shall not copy or reproduce the same nor distribute sell or disclose the contents of the same to any third party without our prior consent.
12.3 The Buyer undertakes to us to make its employees agents and sub-contractors aware of the provisions of this clause 12 and to use its best endeavours to ensure compliance by its said employees agents and sub-contractors with the obligations set out in clause 12.2 above.
13. Manufacturer’s Specification
13.1 We will not be liable for, or in respect, of any loss or damage caused by, or resulting from, any variation (for whatever reasons) in the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. We will endeavour to advise the Buyer of any such impending variation as soon as it receives notice thereof from the manufacturer.
14. Data Protection Act
14.1 Personal Data (as defined in the Data Protection Act 1998, or any amendment or re-enactment thereof) in respect of a Buyer which is obtained in the course of any Contract to which these Terms and Conditions relate, will be held on our computer system, and may be used by us for the
purposes of assessing the level of credit which should be extended to the Buyer. The information
may also be used for the future marketing of related products and services, unless the subject of the Personal Data gives us notice in writing to the contrary.
14.2 Personal Data will be used only for the purposes stated, and information held will not be disclosed to any third party save where permitted by law, or to protect against fraud, or after obtaining the Buyer’s written consent.
14.3 These uses of Personal Data are covered by our registration under the Data Protection Act, and
a Buyer may obtain copies of the Personal Data held by us upon payment of the prescribed fee.
14.4 As of 01/01/2021 and following the end of the UK’s transition out of the EU, Celerity Limited will comply with all UK Data Protection Laws which is inclusive of the UK GDPR. This is contained in the Data Protection Act 2018 ("DPA 2018") and is the UK's implementation of the General Data Protection Regulation (GDPR). This includes, following strict rules called "data protection principles" as detailed in the DPA 2018.