ADVATEK (UK) LTD
TERMS AND CONDITIONS
1.1 In these Conditions:
ADVATEK – means Advatek (UK) Ltd (Co Reg Number: 9182069)
Buyer – means the person who accepts a quotation from ADVATEK for the sale of Goods or Services or whose order for the Goods or Services is accepted by ADVATEK
Conditions – means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) include any special terms and conditions agreed in writing between the Buyer and ADVATEK
Contract -means the contract for the sale and purchase of the Goods, and/or supply of the Services
Goods – means the goods (including any instalment of the goods or any parts for them) which Advatek is to supply in accordance with these Conditions and as detailed in the Quotation
Quotation – the written document produced by ADVATEK and communicated to the Buyer detailing the Goods and/or Services to be provided by ADVATEK to the Buyer and the price at which such Goods and/or Services will be so provided
Services – means the services to be provided by the Seller to the Buyer which ADVATEK is to supply in accordance with these Conditions as described in the Quotation
1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Any reference to writing includes facsimile transmission and e-mail.
2. Application of Terms & Conditions
2.1 These Conditions shall:
(a) Apply to and be incorporated into the Contract; and
(b) Prevail over any inconsistent terms or conditions contained, or referred to, in the Buyer’s purchase order, confirmation of order, acceptance of a Quotation, or specification or other document supplied by the Buyer, or implied by law, trade custom, practice or course of dealing.
2.2 The Buyer’s purchase order, or the Buyer’s acceptance of a Quotation constitutes an offer by the Buyer to purchase the Goods and/or Services specified in it on these Conditions. No offer placed by the Buyer shall be accepted by ADVATEK other than:
(a) By a written acknowledgement issued and executed by ADVATEK; or
(b) (If earlier) by ADVATEK starting to provide the Services,
When a contract for the supply and purchase of the Goods and/or Services on these Conditions will be established. The Buyer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
2.3 No variation to these Conditions shall be binding unless agreed in writing and signed by authorised representatives of the Buyer and ADVATEK.
3. Quotations and Orders
3.1 Quotations are given by ADVATEK on the basis that no Contract shall come into existence except in accordance with condition 2.2 above. Any Quotation is valid for a period of 30 days from its date, provided that ADVATEK has not previously withdrawn it.
3.2 ADVATEK’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by ADVATEK in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
3.3 Any advice or recommendation given by ADVATEK or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing is followed or acted upon entirely at the Buyer’s own risk, and accordingly ADVATEK shall not be liable for any such advice or recommendation which is not so confirmed.
3.4 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of offer, invoice or other document or information issued by ADVATEK shall be subject to correction without any liability on the part of ADVATEK.
3.5 The Buyer shall at its own expense supply ADVATEK with all necessary documents or other materials, and all necessary data or other information relating to the Goods and/or Services, within sufficient time to enable ADVATEK to provide the Goods and/or Services in accordance with the Contract.
3.6 ADVATEK may at any time without notifying the Buyer make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
3.7 The Buyer shall be responsible to ADVATEK for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving ADVATEK any necessary information relating to the Goods or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.8 The quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in the Quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by ADVATEK).
3.9 If the Goods are to be altered or customised or any process is to be applied to the Goods by ADVATEK in accordance with a specification submitted by the Buyer, the Buyer shall indemnify ADVATEK against all loss, damages, costs and expenses awarded against or incurred by ADVATEK in connection with or paid or agreed to be paid by ADVATEK in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person.
3.10 No order which has been accepted by ADVATEK may be cancelled by the Buyer except with the agreement in writing of ADVATEK and on terms that the Buyer shall indemnify ADVATEK in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by ADVATEK as a result of cancellation.
4.1 The price of the Goods and/or Services shall be as specified in the Quotation. Advatek reserve the right to charge additional expenses for travel, subsistence and accommodation when they are incurred by staff whilst delivering a project or a service.
4.2 ADVATEK reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to ADVATEK which is due to any factor beyond the control of ADVATEK (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give ADVATEK adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to ADVATEK.
5. Terms of Payment
5.1 The Buyer shall pay the price of Hardware and Software at the point of order. The Buyer shall pay the price of Services and Support within 30 days of the date of the ADVATEK invoice, and ADVATEK shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer.
5.2 The time of payment of the price shall be of the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to ADVATEK, ADVATEK shall be entitled to:
5.3.1 Cancel the Contract or suspend any further deliveries of the Goods or the supply of the Services to the Buyer and for the avoidance of doubt this relates to any contracts between ADVATEK and the Buyer; and/or
5.3.2 Appropriate any payment made by the Buyer to such of the Goods or Services (or the goods supplied under any other contract between the Buyer and ADVATEK) as ADVATEK may think fit (notwithstanding any purported appropriation by the Buyer); and/or
5.3.3 Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above HSBC Bank PLC base rate from time to time, until payment in full is made.
5.3.4 The purchase orders received by Advatek are divisible. Each delivery made thereunder:
(i) Shall be deemed to arise from a separate contract6, and
(ii) Shall be invoiced separately and any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for therein without reference to and notwithstanding any defect or default in the delivery of any other instalment or of any other instalment under any other contract.
6. Risk and Property
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when ADVATEK has tendered delivery of the Goods.
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until ADVATEK has received in cash or cleared funds payment in full of the price of the Goods and all other goods and/or Services agreed to be provided by ADVATEK to the Buyer for which payment is then due.
6.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as ADVATEK’s property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
6.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), ADVATEK shall be entitled at any time to require the Buyer to deliver up the Goods to ADVATEK and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
6.5 The Buyer shall not be entitled to pledge or any way charge by way of security for any indebtedness any of the Goods which remain the property of ADVATEK, but if the Buyer does so all monies owing by the Buyer to ADVATEK shall (without prejudice to any other right or remedy of ADVATEK) forthwith become due and payable.
7.Warranties and Liability
7.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.2 Except in respect of death or personal injury caused by ADVATEK’s negligence, ADVATEK shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of ADVATEK, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer or the provision of the Services or their use by the Buyer.
7.3 The entire liability of ADVATEK under or in connection with the Contract shall not exceed the price of the Goods and/or Services actually paid by the Buyer.
7.4 ADVATEK warrants to the Buyer that the Services will be provided using reasonable care and skill and, at the intervals and within the times referred to. Where the Seller supplies in connection with the provision of the Services any goods supplied by a third party, the Seller does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Buyer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Seller.
7.5 ADVATEK shall have no liability to the Buyer for any loss, damage, costs, expenses or other claims for compensation arising from any instructions supplied by the Buyer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Buyer.
8.1 Without prejudice to any other rights or remedies which the parties may have, ADVATEK may terminate the Contract without liability to the other on giving the other not less than 3 months written notice or immediately on giving notice to the other if:
(a) the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) The Buyer commits a breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of being notified in writing of the breach; or
(c) the Buyer 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) the Buyer 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; or
(e) A petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
(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; or
(g) The Buyer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(h) There is a change of control of the Buyer (as defined in section 574 of the Capital Allowances Act 2001).
8.2 On termination of the Contract for any reason the Buyer shall immediately pay to ADVATEK all of ADVATEK’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ADVATEK may submit an invoice, which shall be payable immediately on receipt.
8.3 The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
ADVATEK shall have no liability to the Buyer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of ADVATEK 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.
10.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in the Contract. Nothing in this condition shall limit or exclude any liability for fraud.
10.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and such notices shall be shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier.
10.3 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
10.4 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
10.5 The Contract shall be governed by the laws of England and Wales, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
10.6 We reserve the right to assign contracts to other companies at our disretion.