UPS Systems plc Company Terms and Conditions of Sale

Terms and Conditions of Sale

1. Definitions

In these terms and conditions of sale

“the Company” shall mean UPS Systems plc.

“the Buyer” shall mean the company, firm or person by whom an order is placed or with whom a contract is made.

“the Goods” shall mean all or part of the goods, materials or products supplied by the Company to the Buyer under the Contract.

“ the Contract” shall mean the sale of Goods by the Company.

“IPR” shall mean all confidential information, patents, trademarks and service marks, rights in designs, trade or business names, copyright (including rights in computer software), database rights and topography rights (whether or not any of these are registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

2. General

2.1 These terms and conditions of sale comprise the basis on which the Company offers the Goods for sale and in any resulting contract (“the Contract”) will prevail over and supersede any other terms and conditions of the Buyer.

2.2 No variation of these terms and conditions of sale shall be effected unless expressly accepted by the Company in writing.

3.Price

3.1 All prices are exclusive of VAT and do not include carriage/delivery charges unless otherwise quoted.

4. Payment

4.1 The Buyer shall pay the full amount of each invoice in respect of the Goods within thirty (30) days from the date of such invoice.

4.2 Time for payment shall be of the essence, and the Buyer shall have no right of set-off, statutory or otherwise.

4.3 The Company reserves the right to charge interest on all overdue amounts at the rate of 8% above the base reference rate of The Bank of England from the due date for payment. The Company shall also be entitled to claim compensation for debt recovery costs as set out by the Late Payment of Commercial Debts Regulations 2002.

4.4 The Company may at any time require from the Buyer full or partial payment of the price prior to delivery or collection. Orders valued in excess of £25,000 will be subject to stage payments.

5. Quotation, Order and Delivery

5.1 Any quotation given by the Company is only valid for a period of thirty (30) days from the date of such quotation, unless otherwise agreed in writing and provided always that it shall not have been withdrawn previously by the Company.

5.2 No order placed with the Company shall result in a binding contract unless accepted by the Company in writing.

5.3 Time of delivery is not of the essence and the Company shall not be liable for any loss or damage whatsoever suffered by the Buyer as a result of any delay in delivery or failure to deliver. However the company will make all reasonable efforts to comply with pre-arranged delivery timescales.

5.4 The Company reserves the right to make delivery by more than one instalment, each of which shall constitute a separate contract and the Buyer shall not be entitled to refuse to accept delivery of any instalment or to treat the Contract as repudiated.

6. Loss or Damage in Transit

6.1 Where the Goods are lost or damaged in transit otherwise than through the act or omission of the Buyer, the Company shall replace any items lost or damaged beyond economical repair or repair any items damaged provided that:-

6.1.1 the Buyer has inspected the Goods immediately upon delivery.

6.1.2 within 3 days of the receipt or collection of the Goods the Buyer has notified the Company in writing of any shortage, damage or defect.

6.1.3 the Buyer has preserved the Goods in question intact and they are readily available for inspection.

7. Risk and Title

7.1 Risk in the Goods shall pass to the Buyer upon delivery.

7.2 Notwithstanding the passing of risk, the title to and property in the Goods shall remain with the Company until the Buyer has paid all sums due in respect thereof and all or any other sums owing to the Company in respect of other goods supplied.

7.3 Until title to the Goods passes:

7.3.1 the Buyer shall hold the Goods as fiduciary agent and bailee for the Company.

7.3.2 the Goods shall be kept separate and stored so as to be clearly identifiable as belonging to the company.

7.4 The Company reserves the immediate right of re-possession of any Goods to which the Company has retained title as aforesaid exercisable at any time after delivery or collection of the Goods and the Buyer hereby grants an irrevocable right and licence to the Company’s servants and agents to enter upon all or any premises where the Goods are stored without prior notice for this purpose or for the purpose of inspection.

7.5 The Company reserves the right of re-possession, from any location, of any Goods to which the Company has retained title whether or not the Buyer, as a reseller, has sold such Goods to a third party.

8. Returns

All returns must be agreed with the Company and, where necessary, registered under the returns procedure. The Company reserves the right to reject goods arriving at its premises that are not so recorded or clearly marked with the correct returns number. All returns will be subject to a 25% re-stocking charge.

9. Warranty

9.1 The Company warrants that it has title to and the right to sell the Goods.

9.2 The Company upon request will assign to the Buyer the benefit of any warranty it has in respect of goods manufactured by a third party and supplied by the Company. For the avoidance of doubt the period of warranty will begin from date of delivery.

10. Liability

10.1 Nothing in clause 9 shall exclude or restrict the Company’s liability for death or personal injury resulting from its negligence.

10.2 The Company shall not be liable for any failure to deliver or perform the Contract resulting from force majeure or any other matter or event outside the Company’s control. This includes causes beyond the Company’s control including without limitation shortages of materials, accidents, strikes, trade and industrial disputes, fire, storm, act of god.

10.3 In the event of any defect of manufacture, materials or workmanship in the Goods the Buyer shall communicate in writing to the Company within three (3) days of their arrival at the Buyer’s premises.

10.3.1 If notice is given the Buyer shall not be entitled to reject the Goods until the Company has been given the opportunity to inspect the Goods and, if required, to remedy the problem.

10.4 The Company shall not be liable for any loss of or damage to or resulting from the supply or use of the Goods whether arising from breach of duty in contract or tort (including negligence by the Company, its servants or agents) and in no circumstances shall the Company be liable for any indirect or consequential loss or damage.

10.5 The total liability of the Company for all or any claims arising shall not exceed the price of the Goods.

11. Indemnity

Subject to any liability of the Company in accordance with clause 9 the Buyer shall indemnify the Company in respect of any claim made by any third party in connection with the Goods or any use to which the goods may be put by the Buyer.

12. Confidentiality

12.1 The Buyer will keep confidential all technology, technical data, commercial information, know-how, specifications, inventions, processes, initiatives and other information which is of a confidential nature and which has been disclosed to the Buyer by the Company or its agents and any other confidential information concerning the Company’s business or its products which the Buyer may obtain as a result of or in connection with the Contract.

12.2 The Buyer will restrict the disclosure of the confidential information to such of its employees, agents or subcontractors as need to know the same and will ensure that such employees, agents or subcontractors are subject to equivalent obligations of confidentiality as bind the Buyer.

13. Intellectual Property Rights

13.1 The Buyer will keep the Company indemnified in full against all liability, loss, damage, injury, claim, action, demand, expense or proceeding in respect of any infringement or alleged infringement of any IPR resulting from any compliance by the Company with the Buyer’s instructions, whether express or implied.

13.2 Nothing in these conditions will be construed as any representation or warranty by the Company that the design, manufacture, use or sale of the Goods is not an infringement of any third party intellectual property rights and the Buyer acknowledges that the Company only transfers such title as the Company has.

14. Health and Safety

14.1 The Company has provided the Buyer with any product and technical information available on the safe use, storage, handling and distribution of the Goods. The Buyer shall be responsible for complying with all statutes, regulations and any codes of practice applicable thereto.

15. Termination

15.1 If the Buyer:

15.1.1 commits a material breach of the Contract; or

15.1.2 commits any act of bankruptcy or enters into receivership, administration or winding up then in any such event the Company shall have the right to cancel or suspend any further deliveries and treat the contract as determined, but without prejudice to the Company’s right to any sums due and damages for loss suffered in consequence of such determination.

16. 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.

17. Waiver and Severance

17.1 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.

17.2 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.

18. Assignment

Neither the Company nor the Buyer shall assign or transfer the contract or the benefits thereof without the prior written consent of the other party.

19. 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 seven days after despatch, notices sent by fax or email shall be deemed to have been given twenty four hours from the date of despatch.

20. 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.