Terms and Conditions of Sale for UPS Systems PLC

Terms and Conditions of Sale for UPS Systems plc

These terms and conditions shall apply to the sale of all goods and services by UPS Systems plc (“UPS”).

1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Consumer: any Customer in person that purchases the products for their personal use rather than any business purpose.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause 5.1.
Force Majeure Event: has the meaning given to it in clause 15.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order or the Customer’s written acceptance of the Supplier’s quotation.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification below.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: UPS Systems plc registered in England and Wales with company number 02784286.
Supplier Materials: has the meaning set out in clause 9.1(g).

2. THE CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.8 The provisions of clause 4 shall apply to Consumers only.

3. GOODS
3.1 The Goods are (where applicable) described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.

4. CONSUMERS
4.1 The Consumer shall order the Goods through the Supplier’s website and shall pay for the Goods by way of debit or credit card at the time the Order is made. The provisions of clause 10 shall not apply.
4.2 If the Goods are purchased by a Consumer the Consumer has a legal right to cancel the Order under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 during the period set out in clause 4.4 below.
4.3 The right of cancellation under clause 4.2 does not apply in the case of any Goods which have been made and supplied to the Consumer’s specific requirements.
4.4 The legal right to cancel under clause 4.2 runs from the Commencement Date and is for a period of 14 days from the date of delivery of the Goods.
4.5 The Consumer may cancel an Order by way of email, which should be sent to [insert email address] or by post (sent by first class post or recorded delivery) to [insert address]. Cancellation of the Order shall be effective from the date the Supplier confirms receipt of the email or within 2 working days of any letter sent by first class post or recorded delivery.
4.6 If the Order is cancelled under this clause 4, the Supplier will:
(a) refund the price paid for the Goods less any reduction in the value of Goods as a result of any mishandling of the Goods which has caused a reduction in value;
(b) refund any delivery costs paid (such costs limited to the costs of delivery by the least expensive delivery method which is used by the Supplier);
(c) make the refund as soon as possible and in any event no later than:
(i) within 14 days of receipt of the returned goods by the Supplier; or
(ii) if the Goods have not been received by the Consumer or the Goods have been received and the company has offered to collect the Goods from the Delivery Location within 14 days following receipt of cancellation of the Order.
4.7 In the event the Goods are returned pursuant to clause 4 by reason of any fault or mis-description, the Supplier will refund the price of the Goods in full together with all applicable delivery charges and any reasonable costs in returning the item to the Supplier.
4.8 Any refund made to the Consumer will be credited to the credit card or debit card used to pay for the Goods in accordance with clause 4.1.
4.9 The Supplier is under a duty to ensure the Goods provided are in conformity with the Order. In respect to any Consumer sale, the provisions of clause 13.3 shall not apply and the Consumer will be entitled to all such legal protection as provided for within the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 (as amended).
4.10 Further and to the extent these Conditions purport to exclude any legal protections to which a Consumer would otherwise be entitled, such provisions of these Conditions shall not apply to the sale of Goods to any Consumer.

5. DELIVERY OF GOODS
5.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
5.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
5.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.5 If the Customer fails to accept or take delivery of the Goods within 14 days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am 14 days following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.6 If 14 days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.7 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including [5] per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
5.8 The Supplier may, with agreement of the Customer, deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.9 If the Supplier agrees to the return of any Goods by the Customer for any reason within 14 days of delivery save in the case of defective Goods the Customer shall be required to pay a restocking charge of up to 20% of the price of the Goods.

6. QUALITY OF GOODS
6.1 The Supplier warrants that on delivery and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description and the Goods Specification;
(b) be free from material defects in design, material and workmanship.
6.2 Subject to clause 6.3, if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 6.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.4 Except as provided in this clause 6.4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 6.2.

7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 If before title to the Goods passes to the Customer the Customer becomes subject to any event prescribed for in clause 14.1 then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

8. SUPPLY OF SERVICES
8.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

9. CUSTOMER’S OBLIGATIONS
9.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
(b) co-operate with the Supplier and provide such information as required in all matters relating to the Services (including, but not limited to, diagnosing of any faults or problems);
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
9.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 9.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

10. CHARGES AND PAYMENT
10.1 The price for Goods shall be the price set out in the Order.
10.2 The charges for Services shall be on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier’s standard daily fee rates and as set out in the Order;
(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
10.3 The Supplier reserves the right to:
(a) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
(iv) charge a restocking fee in accordance with clause 5.9.
10.4 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
10.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
10.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above HSBC plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
10.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
11.3 All Supplier Materials are the exclusive property of the Supplier.

12. CONFIDENTIALITY
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 12 shall survive termination of the Contract.

13. LIMITATION OF LIABILITY
13.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
13.2 Subject to clause 13.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £500,000.
13.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.4 This clause 13 shall survive termination of the Contract.

14. TERMINATION
14.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:-
(a) commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other part];
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(c) to clause 14.1(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
14.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, or in circumstances under 14.1(c) to (m) (inclusive).
14.4 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

15. FORCE MAJEURE
15.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

16. GENERAL
16.1 Marketing: unless otherwise agreed in writing by the Company, the Company reserves the right to create marketing related material including, but not limited to, case studies, mail-shots, e-shots, testimonials and promotional editorials based on any and all sales to the Customer.
16.2 Waiver and severance
(a) Any indulgence granted by the Company to the Buyer and any failure by the Company to insist upon strict performance of these terms and conditions shall not be deemed a waiver of any of the Company’s rights or remedies nor be deemed a waiver of any subsequent default by the Buyer.
(b) The invalidity in whole or in part of any clause in these Conditions shall not affect the validity of the remainder of the clauses or these Conditions.
16.3 Assignment: neither the Supplier nor the Customer shall assign or transfer the contract or the benefits thereof without the prior written consent of the other party.
16.4 Notices: any notice hereunder shall be deemed to have been duly given if sent by prepaid first class registered post, fax to the party concerned at its registered office or principal place of business or emailed to the party concerned. Notices sent by first class registered post shall be deemed to have been given 7 days after despatch, notices sent by fax or email shall be deemed to have been given 24 hours from the date of despatch.
16.5 Third parties: a person who is not a party to the Contract shall not have any rights to enforce its terms.
16.6 Variation: except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
16.7 Governing law: the Contract shall be governed by and construed in accordance with English law and any disputes arising shall be subject to the exclusive jurisdiction of the English courts.