Switch-Ed STANDARD TERMS AND CONDITIONS OF SALE (the "Conditions")
1. DEFINITIONS AND INTERPRETATION
1.1 Headings are for guidance only and do not form any part of these Conditions.
1.2 The following terms shall bear the following meanings:
"Buyer" means the person, company, organisation or other entity entering into the Order for the Goods;
"Goods" means the products, articles or things or any of them subject of the Order and described in the Order;
"Specification" means the technical description (if any) of the Goods contained or referred to in the Order; and
"Order" means the order placed by the Buyer for the Goods.
2.0 Switch-ed expressly reserves the right to alter its prices, product specifications and terms and conditions without notice. For the avoidance of doubt, no such change shall affect the Order once it has been accepted by Switch-ed
3. FORMATION OF ORDER
3.1 The Buyer shall be bound by the Order:-
3.1.1 if it is made on an official Switch-ed order form; or
3.1.2 if the Order is accepted on behalf of Switch-ed by a duly authorized Director, Employee or Agent over the telephone either with or without the condition that the Order is to be confirmed in writing by the Buyer: or
3.1.3 if the Order is made in such form of written memorandum as the Buyer and Switch-ed may find acceptable.
4. PAYMENTS AND TITLE RETENTION
4.1 Payment will be due within thirty days of the date of Switch-ed ' invoice, subject to alternative written agreement between Switch-ed and the Buyer.
4.2 Switch-ed reserves to right to claim interest at the rate of 4% per annum above the minimum base lending rate for the time being of Fortis Bank, calculated on a daily basis on all sums due to Switch-ed and unpaid from the date on which payment is due under these Conditions until the date on which payment is made, both including the period before and after judgment.
4.3 Risk in the Goods shall pass to the Buyer when the goods are delivered to, or collected by, the Buyer or its agent.
4.4 Notwithstanding risk in the Goods passing in accordance with Clause 4.3 of these Conditions, title in the Goods shall not pass to the Buyer until both (i) payment is received by Switch-ed for the Goods; and (ii) no other amounts are then outstanding from the Buyer to Switch-ed in respect of any other goods supplied by Switch-ed to the Buyer.
4.5 Before title has passed to the Buyer under the terms of Clause 4.4 and without prejudice to any of its other rights, Switch-ed shall have to recover or resell the Goods or any of them and may enter the Buyer's premises by its servants or agents for that purpose. If so required, the Buyer will store the Goods separately from the Buyer's own goods to make them readily identifiable to Switch-ed.
4.6 Should the Buyer alter the Goods by subjecting them to any manufacturing process or incorporating them into another product, then the resulting product ("Altered Product") will pass into the ownership of Switch-ed until payment due under all contracts between Switch-ed and the Buyer have been made in full and all Switch-ed' rights hereunder shall extend to the Altered Product.
4.7 Until payment due under all contracts between the Buyer and Switch-ed has been made in full:
4.7.1 the Buyer shall hold upon trust for Switch-ed the Goods and Altered Product;
4.7.2 in the event of the sale or hire of the Goods or Altered Product by the Buyer, the Buyer shall hold the proceeds of such sale or hire on trust for Switch-ed in a separate bank account, opened by the Buyer for this purpose;
4.7.3 Switch-ed shall be entitled to trace all such proceeds of sale or hire charges received by the Buyer through any bank or other account maintained by the Buyer; and
4.6.4 in the event of sale or hire of the Goods or the Altered Product by the Buyer, the Buyer shall assign all rights to recover the selling price or hire charges from the third parties concerned to Switch-ed if required to do so in writing.
4.8 The Buyer shall keep the Goods insured against all insurance risks from the time at which risk passes to the Buyer pursuant to Condition 4.3 (above), in the amount of the price at which the Goods are sold.
4.9 If the Goods are destroyed by an insured risk prior to the same being paid for by the Buyer, the Buyer shall receive the proceeds of any such insurance as a trustee for Switch-ed.
4.10 Prices are exclusive of VAT, unless expressly stated otherwise.
4.11 Normal delivery charges in the UK will be shown on the invoice, but any special express delivery requested by the Buyer will be charged in full.
5. DELIVERY DATE AND RIGHT TO RETURN THE GOODS
5.1 Any date given for delivery by Switch-ed is to be considered as an approximate estimate and cannot be guaranteed.
5.2 If the Buyer is a private consumer and Switch-ed becomes aware that the expected date for delivery is likely to be more than 30 days after the Buyer places the order:
5.2.1 Switch-ed will contact the Buyer to inform the Buyer accordingly;
5.2.2 Switch-ed will ask the Buyer if the Buyer would be willing to agree to a later delivery date; and
5.2.3 If the Buyer does not agree to a later delivery date, the Buyer shall be entitled to cancel the order. For the avoidance of doubt and to avoid any orders being unintentionally cancelled, the Buyer shall not be treated as having cancelled the order under this Condition 5.2.3 unless the Buyer confirms such cancellation to Switch-ed in writing.
5.3 If the Buyer is a private consumer, the Buyer shall have the right to return the Goods (in its original packaging) to Switch-ed for any reason whatsoever at any time up to 14 days from receipt of the Goods. However, Switch-ed reserves the right to charge the Buyer its reasonable costs and expenses incurred as a result of the Buyer exercising this right and also for any damage to, or use of, the Goods in the event that the Goods are damaged or have been used.
5.4 If the Buyer is not a private consumer, the Buyer shall have no right to return the Goods and the full amount payable for the Goods shall remain fully due and owing from the Buyer to Switch-ed regardless of whether or not the Buyer has returned the Goods to Switch-ed.
5.5 All of the above provisions of this paragraph 5 shall be subject to and shall not affect your statutory rights.
6.1 Switch-ed warrants the Goods to be free of defects, to be made of sound materials and to conform to the quantity and description stated in the Order. The Buyer will accept slight imperfections in colour, appearance and measurement.
6.2 If any of the Goods are found to be defective within the period of twelve (12) months from the date of delivery, Switch-ed undertakes as its option, to replace the same or refund to the Buyer the price of the Goods.
6.3 Other than as expressly set out in these Conditions and other than the warranty as to good title and as otherwise required by law, Switch-ed hereby excludes all representations and warranties in relation to the Goods whatsoever, whether express or implied. Without prejudice to the generality of the foregoing, Switch-ed expressly excludes any warranties as to fitness for purpose and the Buyer agrees that it shall determine the suitability of the Goods for its intended use.
7. LIMITATIONS ON LIABILITY
7.1 Switch-ed liability for the following matters shall be unlimited:
7.1.1 for personal injury or death caused by the negligence of Switch-ed or its employees, agents or contractors;
7.1.2 under Part 1 of the Consumer Protection Act 1987;
7.1.3 for breach of any conditions as to title or quiet enjoyment implied by section 12 of the Sale of Goods Act 1979 (as amended) or section 2 of the Supply of Goods and Services Act 1982 (as amended);
7.1.4 for fraudulent misrepresentation; and 7.1.5 for any other matter in respect of which law prescribes that liability may not be excluded or limited.
7.2 Switch-ed shall not be liable for any indirect or consequential losses (including, without limitation, loss of profit, business, revenue, capital, anticipated savings and/or goodwill).
7.3 Save as provided in Conditions 7.1 and 7.2 (above), SpaceKraft entire liability in connection with the Goods shall be limited to the price payable for the Goods.
8.1 Neither Switch-ed nor the Buyer shall be liable for any matter, delay, liability or expense caused by any matter or event beyond its reasonable control, including without limitation, strikes, lockouts or other industrial action by workers, employers, trade disputes, accidents on land or sea, government interference, war or hostilities, riot or civil commotion, earthquake, flood, fire or other natural physical disaster, Government action or legislation.
8.2 Failure by either party to exercise or enforce any rights, or the giving of any forbearance, delay or indulgence, will not be construed as a waiver of its rights or otherwise.
8.3 If any provision of these Conditions is or becomes invalid or unenforceable it will be severed from the rest of these Conditions so that it is ineffective to the extent that it is invalid or unenforceable and no other provision of these Conditions shall be rendered invalid, unenforceable or be otherwise affected.
8.4 Nothing in this Agreement shall make either party the agent or partner of the other or give either party the power to bind the other.
8.5 Nothing in this agreement shall confer on any third party any right or benefit under the provisions of the Contracts (Rights of Third Parties) Act 1999.
8.6 These Conditions and the Order constitute the entire agreement between the parties relating to the subject-matter and no variation, waiver of, or addition to the same shall be binding unless in writing and signed by both parties.
8.7 These Conditions shall be governed by and construed in accordance with the laws of England and Wales.