1. THESE CONDITIONS
(1.1) In these terms and conditions the word Call-Savers means Call-Savers, the words the customer shall mean the person, firm or company purchasing or agreeing to the purchase of goods or services from Call-Savers, the words these conditions shall mean the terms and conditions of sale set out herein and the word goods shall mean all equipment, spare parts, other goods, repairs or services to be provided to the Customer by Call-Savers.
(1.2) All agreements by which Call-Savers agrees to supply goods and services to the customer shall be subject only to these Conditions notwithstanding any variation or attempted variation of these Conditions made by the Customer in its order form or otherwise and (save as provided by Clause 1.2 of these Conditions) the making of an order by the Customer for the goods or services supplied by Call-Savers shall for all purposes be deemed to be acceptable by the Customer of these Conditions to the exclusion of any other terms and conditions. Any brochure in which these Conditions are incorporated shall constitute an invitation to treat by Call-Savers and any order placed by the Customer shall constitute an offer for goods incorporating these Conditions made by the Customer which Call-Savers may in its discretion accept in writing or by telephone or fax. No cancellation of an order by the Customer shall be valid unless made in writing and accepted in writing by Call-Savers
(1.3) No variation of these Conditions is permitted unless expressly accepted in writing by a Call-Savers Director.
(1.4) No amendment to any Conditions or Contract or Quotation verbal or otherwise, is permitted unless expressly accepted in writing by a Call-Savers Director.
2. THE GOODS
(2.1) Subject to the warranty containing in clause 6.1, all descriptions, drawings and particulars relating to the goods in any catalogues, leaflets, brochures or other documents are for illustrative purposes only and do not form part of the agreement between Call-Savers and the Customer. All representations as to performance of goods are based on information supplied by the manufacturer of the goods and relate to their performance in normal conditions and when used correctly in accordance with the manufacturers installation and user instructions.
(2.2) Unless otherwise expressly agreed, goods supplied will be in accordance with manufacturer’s normal designs and specifications current at the date of manufacture or delivery and the supply by Call-Savers of goods differing from any contractual or pre-contractual specifications or descriptions shall not be in breach of the agreement between Call-Savers and the Customer insofar as the goods are of approximately equivalent performance to the goods referred to in such specifications and descriptions.
3. DELIVERY AND RISK
(3.1) Unless otherwise expressly agreed, the prices quoted are exclusive of value added tax and the cost of carriage which will be charged at Call-Savers normal rates.
(3.2) The time for delivery of the goods is not of the essence. The agreed dates for delivery are estimates only and a failure by Call-Savers to comply with them shall not be a breach of the Conditions. Furthermore should the equipment delivered be rendered inoperable as a result of a failure of another supplier or contractor to commission services connected to the equipment (such as British Telecom lines), Call-Savers shall not be in breach of the conditions
(3.3) The goods shall be at the Customers’ risk at the time of delivery, or, if the customer has requested that he has arranged the collection of the goods, at his risk on the date that Call-Savers has notified the customer that the goods are ready for collection.
(3.4) The customer is required to inspect the goods on receipt and to notify Call-Savers in writing of any defects or complaints within 7 days.
(3.5) If any payment due to Call-Savers is overdue at 60 days from invoice or if the Customer ceases to trade or enters into any arrangement with it’s creditors or shall become insolvent or has a receiver or administrative receiver appointed or a petition is presented or a resolution passed for the winding up of the Customer (if the Customer is a company) other than for the purpose of a solvent reconstruction or amalgamation previously notified to Call-Savers, the Customer shall then be deemed to have repudiated any agreements it may then have with Call-Savers who shall be entitled (without prejudice to any other rights or remedies available to it) to stop any goods in transit and to cancel any further deliveries.
(3.6) All quotes and orders are subject to a full engineering survey.
4. PROPERTY IN THE GOODS
(4.1) Notwithstanding risk in the goods passes to the Customer in accordance with Clause 3.3 of these Conditions the goods shall remain the sole and absolute property of Call-Savers and title to and legal and equitable ownership of the goods shall not pass to the Customer until payment is received by Call-Savers of all monies due from the Customer to Call-Savers in respect of all goods supplied by Call-Savers to the customer and the Customer acknowledges that until such payment is made in full it is in possession of goods solely as a fiduciary of Call-Savers.
(4.2) The Customer is licensed by Call-Savers to use or to agree to sell the goods provided that the entire proceeds of any sale of such goods are held in trust for Call-Savers and are not mixed with other monies or paid into an overdrawn bank account and shall at all times be identifiable as Call-Savers money.
(4.3) Until title to the goods passes to the Customer the goods shall be kept separate and distinct from all other property of the Customer and of third parties and in good condition and stored in such a way as to be clearly identifiable as belonging to Call-Savers and the Customer will not cause or permit or suffer any labels badges serial numbers or other means of identification of the goods to be removed or obscured.
(4.4) Call-Savers may for the purpose of recovering goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
5. PRICE AND PAYMENT
(5.1) Time for payment is of the essence and if payment is not received within the agreed payment terms Call-Savers may require the Customer to pay interest at 3% per month from the date of invoice compounded monthly.
(5.2) If payment should not be received, Call-Savers will be entitled to charge (in addition to interest and any legal costs ordered by the Court and without prejudice to any other rights or remedies available to Call-Savers) the sum of £85 plus VAT by way of liquidating damages and as a contribution to the administrative costs incurred by Call-Savers in taking steps to secure payment.
(5.3) Unless otherwise stated, all payments are to be made in Sterling to Call-Savers address as stated on the invoice.
(5.4) Where any agreement to supply goods to be delivered by instalments which are to be separately paid for, such agreement shall not be severable and failure by the Customer to pay for or accept delivery of any instalment by the due date shall entitle Call-Savers at its option to treat the whole agreement with the Customer as repudiated.
(5.5) The price may be increased by Call-Savers at it’s discretion, to take account of fluctuations in exchange rates or increases in the cost of the goods to it or taxes or otherwise.
(5.6) The price shall be payable without any deduction of set-off.
6. WARRANTY AND LIABILITY OF CALL-SAVERS
(6.1) Call-Savers undertakes to credit the account of the Customer (if any) or to remedy free of charge by repair or replacement of any defects in the goods covered under the manufacturers guarantee provided that the Customer notifies Call-Savers promptly of such a defect and where the Customer arranges for the prompt return to Call-Savers of the defective goods at the Customer’s risk and expense.
(6.2) Save as herein specifically provided and save to the extent that the same cannot by statute be excluded all conditions and warranties or representations expressed or implied statutory or otherwise in relation to the goods are hereby excluded. Nothing in this Clause 6.2 of these Conditions shall exclude the undertakings implied by Section 12 of the Sale of Goods Act 1979.
(6.3) Call-Savers does not exclude liability in respect of death or personal injury which result from the negligence of Call-Savers it’s employees agents or sub-contractors.
(6.4) Call-Savers shall not be liable for any financial consequential or indirect loss suffered by the Customer or any third party whether such loss arises from breach of a duty in contract or tort or in any other way else (other than damage caused by the negligence of Call-Savers or any of it’s employees agents sub-contractors) and personal injury to the Customer or anyone else (except so far such injury is attributable to Call-Savers negligence).
(6.5) To be valid any claim against Call-Savers whether in contract or tort must be brought within two years of the date of invoice and any such claim shall be limited to an amount by way of liquidated damages equal to the invoice value of goods in respect of which the claim is made.
7. FORCE MAJEURE
(7.1) Call-Savers shall not be liable to the Customer for any failure to perform its obligations due to any circumstances beyond its control (including without limitation, strikes, lockouts, industrial disputes, failure of power supplies, delays caused by any other person, firm or company, details caused by any manufacturer of the goods, riots, civil disturbances, war or warlike activities, embargoes, fire, explosion, flood, or natural causes) and in such event Call-Savers may elect by written notice to cancel any agreement with the customer or elect that the time for performance shall be extended until such time as Call-Savers can reasonably effect performance.
(8.1) If the Customer shall be in breach of any of these Conditions then the failure by Call-Savers to require the customer to rectify the same shall not create any assumption that such a breach has been waived by Call-Savers.
(9.1) All demands notices and other communications shall be in writing and addressed to Call-Savers at its address shown on invoices delivered by it and for delivery of invoices (or as subsequently notified by one to the other in writing) and shall be deemed to have been duly given or made by letter 48 hours after being posted first class postage pre-paid or if delivered by hand at the time of delivery.
10. LAW AND JURISDICTION
(10.1) The conditions shall be governed by and construed in accordance with English Law.