“Contract” means these standard Terms and Conditions of Supply between the Company and the Customer, under Products as supplied by the company to the Customer and sets out the basic rules and obligations.
“Customer” means the party identified as the Customer in the Contract to whom the Company may agree to supply Products from time to time in accordance with the terms and conditions of this Contract.
“Company” means Prestek Computing Limited, Unit 22, The Business Centre, Molly Millars Lane, Wokingham, Berkshire, RG41 2QY and also where the context permits its assigns any sub-contractor of the said Company. The company registration number is 7687075. The Company’s VAT number is GB 118 7137 14.
“Goods” means the hardware goods including but not limited to computer hardware items to be provided by the Company to the Customer in accordance with this Contract.
All orders placed with the Company by the Customer for Goods shall constitute an offer to the Company, under the terms and conditions of this Contract, subject to availability of the products and to acceptance of the order by the Company’s authorised representative.
All orders are accepted and the Goods supplied subject to the express terms and conditions of this Contract only. The Company may at anytime amend this Contract by sending it in writing or posting it on the Company Website. The amended Contract shall apply to any orders placed by the Customer.
It is agreed that the terms and conditions of this contract (or any amendments to them) prevail over the Customers terms and Conditions of purchase unless these latter terms and conditions are amended by the Company in writing and signed by the Company.
The Customer cannot rely on statements made before signature of the Contract unless made by the Company’s authorised representative and either:
it is expressly stated by the customer that the statement is to be relied upon; and
it is reproduced in a letter to the Customer and not withdrawn before the contract is made.
On receipt of the Customer’s order the Company will send the Customer a Pro-Forma Invoice detailing the Goods ordered. This Pro-Forma Invoice is not an order confirmation or acceptance of order by the Company. For the avoidance of doubt, the Company shall be at liberty to refuse to accept any order placed by the Customer for any reason whatsoever.
No order placed shall become a purchase contract, and therefore binding the company, until the goods have been dispatched to the Customer in accordance with clause 4 below.
Nothing in this contract affects or limits the party’s liability for fraudulent misrepresentation.
The relationship between the Company and the Customer is that of independent contractor. Neither party is the agent of the other, and neither party has any authority to make any contract or to impose any
obligation on the other party without their express permission.
Any date or time quoted for delivery of the Goods is to be treated as an estimate only. Delivery may be postponed because of conditions beyond the Company’s reasonable control, and in no event shall the Company be liable for any damages or penalty for delay in dispatch or delivery of the Goods.
Risk shall pass to the Customer at the time the Goods delivered according to the Inco terms effective for the transaction.
At the time of delivery the Customer must check that the quantity of the Goods matches the quantity set out on the Proof of Delivery and that the exterior of the Goods are in good condition. The Customer must then indicate this on the Proof of Delivery and sign the Proof of Delivery accordingly. If an over shipment of Goods has occurred the Customer must also notify the Company as soon as possible and in any event within 24 hours of the delivery. The customer must not sign the proof of Delivery “unchecked” or “unexamined” or any such similar wording.
A signed proof of Delivery by or on behalf of the Customer shall be conclusive evidence of delivery and (except to the extent that any damage or discrepancy is noted on the Proof of Delivery) that the Goods were received in good order and condition and accordingly no claims shall be bought in respect of the delivery to the contrary.
The Customer must inspect the Goods immediately after delivery is complete. If any Goods are damaged (or not delivered), the Customer must notify the Company within 24 hours of the delivery or expected delivery. If Proof of Delivery is required, this must be requested within 3 working days of the date of the invoice.
The Company may deliver the Goods in instalments. Each instalment is treated as a separate delivery.
Goods will be supplied under DDP Inco terms 2010 where the country of destination is inside the EU and will be supplied DAP port/airport country of destination Inco terms 2010 to all other countries of destination.
Cancellation and Rescheduling
Unless otherwise agreed in writing, any request by the Customer for cancellation of any order or for the rescheduling of any deliveries will only be considered by the Company if made at least 12 hours before dispatch of the Goods, and shall be subject to acceptance by the Company at the Company’s sole discretion, and subject to a reasonable administration charge. The Customer hereby agrees to indemnify the Company against losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
Price and Payment
Catalogues, price lists and other advertising literature or material as used by the Company are intended only as an indication as to the price and range of the Goods offered and no prices, descriptions or other particulars contained within shall be binding on the Company.
All prices are given by the company at the time of the order on an ex-works basis and the Customer is liable to pay for the transport, packing and insurance costs, unless stated different at the time of order.
All quoted or listed prices are based on the cost to the Company of supplying the Goods to the Customer. While the Company tries to ensure that all prices are accurate, errors may occur. If prior to delivery of the Goods, the Company discovers an error in the price of the Goods ordered, or the price changes as a result of circumstances beyond the Company’s control, the Company may change the Good’s price and such changes shall apply to any purchase order placed with the Company.
All prices are represented in Sterling Pounds, Euros or US Dollars and are exclusive of Value Added tax and/or any similar taxes. All such taxes are payable by the Customer and will be levied in accordance with UK legislation in force at the tax-point date.
Invoices will be raised by the Company on the date the order is placed by the Customer. Unless otherwise specifically requested and agreed in writing by the Company, invoices will be payable by the Customer upon receipt of Goods by same day instant payment method, unless otherwise stated by the Company upon the Invoice. The time of the Payment shall be the essence of the Contract. Payments which are not received in full by the due-date, will be considered overdue and remain payable by the Customer together with the interest for late payment and reasonable debt recovery costs. The interest payment will be at a rate equivalent to that set for the purposes of s6 of the late Payment of Commercial Debts (interest) Act 1998, calculated on a daily basis from the date of invoice until payment; such interest to be compounded on the first day of each calendar month and payable both before and after any judgment (unless the court orders otherwise).
The Customer must notify the Company in writing within 24 hours of the date of invoice of any errors within the invoice. Failure will result in the Company assuming acceptance of the invoice in full.
Should Credit facilities be provided the Customer undertakes to notify the Company without delay of any material change in its finances, structure, share ownership and/or value of assets which may affect the Customer’s credit status. In addition to any remedy available at law failure to report any such changes may result in credit being withdrawn without prior notice.
The Customer does not have the right to set off any money claimable from the Company against sums owing to the Company by the Customer.
If Goods are delivered in instalments the Company shall be entitled to invoice each instalment upon delivery.
The Company will claim a lien on any Customers property in the Company’s possession if the Customer is in debt to the Company.
Until the Customer pays all debts to the Company:
all Goods that have been purchased by the Customer from the Company will remain the property of the Company;
all Goods that have been Purchased by the Customer from the Company must be stored so that they are clearly identifiable as the property of the Company; and
the Customer must Insure all such Goods.
The customer shall have the right to sell the Goods in the ordinary course of business unless, or until;
the Customer becomes or is deemed to be insolvent in accordance with clause 13.2 herein the aforementioned circumstance occurs then the right to sell the Goods will be revoked with immediate effect and without the Company being required to give notice, orthe Company revokes the right to sell Goods in the ordinary course of business by informing the Customer in writing (including email or fax), revocation will then have immediate effect.
If the Customer’s right to use and sell the Goods in the ordinary course of business ends, the Customer must permit the Company to reclaim the Goods.
The Customer agrees to give the Company permission to enter any premises where the Goods are stored:
at anytime to inspect them and
to remove them (using reasonable force if necessary) after the Customer’s right to use or sell them has finished.
Despite the Company’s retention of title to the Goods the Company reserves the right to take legal proceedings to recover the cost of Goods supplied should the Customer not make full payment by the invoice due date.
The Customer is 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 Company. Should the Customer do so, all monies owing by the Customer to the Company shall without prejudice to any other rights or remedies of the Company immediately become due and payable.
The Company reserves the right to stop supplying Goods to the customer at anytime.
The Company will not be liable for any loss or damage caused by variation in the manufacturer’s specifications or technical data of the Goods, for any reason whatsoever.
The Company will not be responsible for any loss or damage resulting from restriction or termination of supply of Goods following any variation as described in clause 7.1 of this Contract.
The Company will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any such notice thereof from the manufacturer.
Unless otherwise agreed, the Goods are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified.
The Company reserves the right to increase its quoted or listed prices, or to charge accordingly in respect of any orders accepted for Goods of non-standard specifications and in no circumstances will the company consider of such orders or the return of such orders.
Defects & Returns
The Company reserves the right to levy an administration charge in respect of the rotation of Goods and returns.
Returns must be made subject to the following:
That prior authority has been obtained from the Company which will be given at the Company’s sole discretion.
The request for return must be made within 48 hours of the date of invoice and the Goods in issue must be returned within 7 days of the return authority.
The Goods must be property packed, be in a saleable condition and accompanied by a list detailing the Goods.
Lastly, the Goods must still be covered by warranty in accordance with clause 10 below.
The Company reserves the right to reject and Goods which do not comply with the conditions set out in clause 8.2 of this Contract.
If the Company nevertheless agrees to accept any Goods returned which are not in a saleable condition, the Company reserves the right to charge the cost to the Customer of bringing the Goods into saleable condition. Any Goods accepted for return by the company must adhere to the following procedure;
Return requests are to be submitted on the Prestek Computing RMA Form. One form per request/day and to be completed in full. Approval or decline of request will be within 21 days.
Upon issue of RMA returns number, this number will be valid for 7 days only and defective Goods must be delivered to stated address within this period. If received outside of this period, the original RMA returns number issued will be cancelled. The Goods will remain at this address until a new RMA request has been submitted and approved. These defective Goods can be collected from stated address at the customer’s expense.
The RMA returns number must be clearly marked on the outside of all packages returned or on the paperwork provided with the packages.
All Goods returned must be in the original packaging and complete with all accessories supplied. Defective Goods should be returned unmarked, with no customer fault label attached to the Goods, especially damaging the original label as this will void the warranty.
Additional Goods sent back which have not been authorised for return, will not be returned to the customer and must be collected within 30 days of initial delivery, at customer’s expense. Non-collection of Goods will result in a disposal fee which will be at the discretion of Prestek Computing Limited.
Replacement or credit will be issued within 45 days from receipt of defective Goods.
On issue of credit note, the credit price will be at the original purchase price or at the current market value, which will be at the discretion of Prestek Computing Limited.
The Customer shall safeguard and (save as may be required by law) keep confidential all information entrusted to it by the Company which is not in the public domain and take all reasonable precautions to safeguard the Company’s confidential information.
Only those members of staff who need to be aware of confidential information in order for the Customer to fulfil its obligations under this Contract shall be entitled to access to the confidential information.
All confidential information passed to the Customer by the Company shall remain the exclusive property of the Company and the Customer undertakes to return such information at the request of the Company or at the least, upon termination or expiration of this Contract.
Subject to any manufacturers authorised/reseller programmes, terms and/or agreements, the Company warrants that it has good title to or licence to supply all Goods to the Customer.
If any part of the hardware Goods should prove defective in materials or workmanship under normal operation or service, such Goods will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Goods provided that no unauthorised modifications to the Goods or to the System of which the hardware good forms part have taken place. The Company is not responsible for the cost of labour or other expenses incurred in repairing defective or non-conforming parts.
The Company reserves the right to test all Goods returned as faulty and to return to the Customer (at the Customer’s expense) any Goods found not to be faulty. The Company also reserves the right to levy an additional reasonable charge to cover the cost of such testing.
The Company will not accept any liability in relation to any losses, costs or expenses which arise through any difficulty caused over date changes.
Except as specifically set out in clause 10, the Company disclaims and excludes all other warranties, whether express or implied, by statue or otherwise, including but not limited to the warranties of description, design, satisfactory and fitness for a particular purpose, or arising from previous course of dealing, usage or trade practice.
Limitation of Liability
This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of the Company’s employees, agents and sub-contractors) to the Customer in respect of:Any breach of this contract, any use made or resale of the Products by the Customer or of any Product incorporating any of the Products and any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this contract.
Nothing in this Contract shall limit or exclude the liability of either party for; death or personal injury resulting from negligence, or fraud or fraudulent misrepresentation, or breach of the terms implied by section 12 of the Sales of Goods Act 1979.
Without prejudice to clause 11.2, the Company shall not be liable to the Customer whether in contract, tort (including negligence) or restriction, or for breach of statutory duty or misrepresentation, or otherwise, for any Loss of: profit, goodwill, business, business opportunity, anticipated saving, corruption of data information. Special, indirect or consequential damage suffered by the Customer that arises under or in connection with this Contract.
Without prejudice to clause 11.2 the Company’s total liability arising under or in connection with this contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to £100,000.
The Customer shall indemnify and defend the Company and its employees in respect of any claims by third parties which arise from any Company performance or non-performance pursuant to the instructions of the Customer or its authorised representative.
Termination of contract
This Contract may be terminated forthwith by notice in writing:
if either party fails any of its obligations under this contract and such failure continues for a period of 14 days after written notice thereof by the other party; or
by the Company if the Customer fails to pay any sums due hereunder by the due date notwithstanding the previsions for late payment as stated in clause 6.5 of this Contract or if the Customer becomes insolvent if:
The Company will deem the Customer insolvent of:
the Customer is unable to pay debts as they fall due; or
Customer or any item of the Customer’s property becomes the subject of:
any formal insolvency procedure such as receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy; or
any application or proposal for any formal insolvency procedure; or
any application, procedure or proposal overseas with similar effect or purpose.
Any termination of the Contract under clause 12 of these terms and conditions shall be without prejudice to any other rights remedies a party might be entitled to and shall not affect any accrued rights or liabilities of either party.
The confidentiality obligations under clause 9 shall survive termination of this Contract.
The Customer acknowledges and agrees that the hardware and software Goods, and technology subject to this Contract are subject to the export controls and regulations of the United States, EU and National legislation. The Customer will comply with all these laws and regulations. This includes but is not limited to the Export Administration regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, office of Foreign Asset Controls. The Customer will comply with all these laws and regulations.
The Customer shall not, without prior appropriate government authorisation, export, re-export, or transfer any hardware or software Goods, or technology subject to this Contract, either directly or indirectly, to any country subject to a U.S. trade embargo or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Person List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked persons” maintained by the U.S. Department of Treasury or any other Comparable European or local regulation
In addition any hardware or software Goods, or technology subject to this Contract may not be exported, re-exported or transferred to an end user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; missiles or support of missiles projects; (2) the design, development, production, or use of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
The headings in this Contract are for ease of reference only and shall not affect its interpretation or construction.
No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be waiver of any other right or any later breach.
The Customer agrees not to assign any of its contractual rights herein without the prior written consent of the Company.
If any of these terms of this Contract are unenforceable as drafted it will not affect the enforceability of the other terms and if it would be enforceable if amended, it will be treated as so amended.
Neither party shall be liable to the other for any delay in failure to perform its obligations herein under (other than a payment of money) where such delay or failure results from force majeure including any act of God, fire, terrorism, explosion, accident, industrial dispute or any cause beyond its reasonable control.
Any documents or notices given hereunder by either party must be in writing and maybe delivered personally or by first class post or by fax to the others registered address or principle business address. The notice period for posted documents will be deemed to have been given 2 working days after the date of posting. All such notices must be signed.
This Contract shall be construed in accordance with the laws of England and Wales and the jurisdiction of which shall be the courts of England and Wales.
No contract will create any right enforceable by virtue of the Contracts (Tight of Third parties) Act 1999 by any person not identified as the Company of the Customer.
Customer hereby confirms that they understand and accept that telephone calls to and from the Company may be recorded.
Where the Customer requests a credit account and the Company agrees, the Customer accepts and acknowledges that the granting of interest free credit by Company is of commercial value to the Customer and that it is subject to compliance with the above terms.