STANDARD TERMS AND CONDITIONS FOR GOODS AND SERVICES
1. Application of Terms and Conditions
1.1 The Supplier shall supply and the Customer shall purchase the Goods and Services in accordance with the quotation, specification schedule, accepted order or other written agreement between the Parties, which shall be subject to these Terms and Conditions.
1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any quotation is accepted or purported to be accepted, or any order is made or purported to be made, by the Customer.
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day other than a Saturday, Sunday or bank holiday in England and Wales.
“Commencement Date” means the commencement date for the Contract as set out in the quotation, specification schedule, accepted order or other written agreement.
“Confidential Information” means, in relation to either Party, information disclosed to that Party by the other Party pursuant to or in connection with the Contract, whether orally, in writing or in any other medium, and whether or not expressly stated to be confidential or marked as such.
“Contract” means the contract for the purchase and sale of the Goods and/or supply of the Services under these Terms and Conditions.
“Contract Price” means the price payable for the Goods and/or Services as stated in the Contract.
“Customer” means the person, business, organisation or other legal entity which accepts a quotation or offer of the Supplier for the sale of Goods and/or supply of Services, or whose order is accepted by the Supplier.
“Delivery Date” means the date on which the Goods are to be delivered as stipulated in the Customer's order and accepted by the Supplier.
“Goods” means the goods, including any instalment of the goods or any parts for them, which the Supplier is to supply in accordance with these Terms and Conditions.
“Month” means a calendar month.
“Services” means the services to be provided to the Customer as set out in the quotation, specification schedule, accepted order or other written agreement.
“Subscription Services” means Services supplied on a recurring, monthly, subscription, retainer, licence, support, hosting, software-as-a-service or other ongoing basis.
“Supplier” means Nicholas Richard Robert Johnston-Davis T/A Blue Consultancy, of 5 Habbaniya Rise, Nocton, Lincoln LN4 2BS and includes all employees and agents of the Supplier.
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1 “writing”, and any similar expression, includes communication by electronic means, including email;
2.2.2 a statute or provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3 “these Terms and Conditions” means these Terms and Conditions and any schedules, as amended or supplemented from time to time;
2.2.4 a Schedule is a schedule to these Terms and Conditions;
2.2.5 a Clause is a reference to a Clause of these Terms and Conditions; and
2.2.6 a “Party” or the “Parties” refers to the parties to the Contract.
2.3 The headings used in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2.4 Words importing the singular shall include the plural and vice versa.
2.5 References to any gender shall include all genders.
3. Basis of Sale and Service
3.1 The Supplier's employees or agents are not authorised to make representations concerning the Goods or Services unless confirmed by the Supplier in writing. In entering into the Contract, the Customer acknowledges that it does not rely upon any representation which has not been confirmed in writing.
3.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between authorised representatives of the Customer and the Supplier.
3.3 Sales literature, price lists, website content and other documents issued by the Supplier in relation to Goods and Services are subject to alteration without notice and do not constitute an offer capable of acceptance unless expressly stated otherwise.
A Contract shall become binding upon the earliest of:
3.3.1 the Supplier's written acceptance;
3.3.2 delivery of the Goods;
3.3.3 commencement or provision of the Services; or
3.3.4 the Supplier issuing an invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in sales literature, quotations, price lists, acceptance of offers, invoices or other documents issued by the Supplier may be corrected without liability on the part of the Supplier.
4. The Goods
4.1 No order submitted by the Customer shall be deemed accepted by the Supplier unless and until confirmed in writing by the Supplier's authorised representative or otherwise accepted in accordance with Clause 3.3.
4.2 The specification for the Goods shall be that set out in the Supplier's sales documentation unless expressly varied in the Customer's order and such variation is accepted by the Supplier.
4.3 Illustrations, photographs or descriptions in catalogues, brochures, websites, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding upon the Supplier.
4.4 The Supplier reserves the right to make changes to the specification of Goods where required to conform with applicable safety, statutory or regulatory requirements or where such changes do not materially affect their quality or performance.
4.5 No order for Goods which has been accepted by the Supplier may be cancelled by the Customer except with the Supplier's written agreement. The Customer shall indemnify the Supplier against reasonable losses, costs, damages, charges and expenses incurred as a direct result of such cancellation.
5. The Services
5.1 With effect from the Commencement Date, the Supplier shall provide the Services expressly identified in the quotation, specification schedule, accepted order or other written agreement.
5.2 The Supplier shall use reasonable care and skill in performing the Services.
5.3 The Supplier shall use reasonable endeavours to complete its obligations under the Contract, but unless expressly agreed otherwise in writing, time shall not be of the essence in the performance of those obligations.
6. Price
6.1 The price of the Goods and Services shall be the price listed in the Supplier's price list current at the date of acceptance of the Customer's order or such other price as may be agreed in writing between the Supplier and Customer.
6.2 Where the Supplier has quoted a price other than in accordance with its published price list, the quotation shall be valid for 14 days unless another validity period is stated.
6.3 The Supplier reserves the right, by giving written notice to the Customer before delivery or provision, to increase the price to reflect an increase in costs resulting from factors beyond the Supplier's reasonable control, including foreign exchange fluctuations, currency regulation, duties, third-party supplier costs, software or licence costs, labour or materials costs, changes requested by the Customer or delays caused by the Customer.
6.4 Except as otherwise stated in a quotation, specification schedule, accepted order or price list, prices shall be subject to the terms specified by the Supplier.
6.5 Prices are exclusive of VAT and any other applicable taxes or levies unless expressly stated otherwise.
7. Payment
7.1 Subject to any special terms agreed in writing, the Supplier shall invoice the Customer for the Goods and Services in accordance with the payment arrangements set out in the quotation, specification schedule, accepted order or other agreement.
7.2 Unless otherwise agreed in writing, the Customer shall pay invoices within 30 Business Days of the date of the Supplier's invoice without deduction, credit or set-off.
Payment shall be made on the due date notwithstanding that delivery or provision may not yet have taken place where payment in advance has been agreed.
Time for payment shall be of the essence of the Contract.
7.3 All payments shall be made using the payment method specified by the Supplier.
7.4 If the Supplier is not reasonably satisfied as to the Customer's creditworthiness, it may withdraw credit facilities and require payment in advance. Any amounts already due to the Supplier shall remain immediately payable.
8. Delivery and Performance
8.1 Delivery of Goods shall be made to the location specified in the Contract or, where no location is specified, by collection from the Supplier at an agreed location.
8.2 Any Delivery Date is approximate unless expressly agreed otherwise in writing.
8.3 If the Customer fails to take delivery or provide instructions, documents, licences, consents or authorisations required for delivery, the Supplier may store or arrange storage of the Goods and charge the Customer the reasonable costs arising from such failure.
8.4 With effect from the Commencement Date, the Supplier shall provide the Services expressly identified in the Contract.
9. Non-Delivery of Goods and Services
9.1 If the Supplier fails to deliver the Goods or provide the Services on the Delivery Date or Commencement Date for reasons within the Supplier's reasonable control:
9.1.1 if the Supplier subsequently delivers the Goods or provides the Services within a reasonable period, the Supplier shall have no further liability in respect of the delay; or
9.1.2 if the Customer gives written notice within 5 Business Days following the applicable date and the Supplier fails to deliver or provide the relevant Goods or Services within 30 Business Days after receiving such notice, the Customer may cancel the affected order.
10. Risk and Retention of Title
10.1 Risk of damage to or loss of Goods shall pass to the Customer:
10.1.1 where Goods are collected, when the Supplier notifies the Customer that they are available for collection;
10.1.2 where Goods are delivered, at the time of delivery or attempted delivery; or
10.1.3 where Goods are installed by the Supplier, when the Supplier notifies the Customer that installation is complete.
10.2 Legal and beneficial title to Goods shall not pass to the Customer until the Supplier has received payment in full in cleared funds.
10.3 Title shall not pass until the Customer has paid all monies owed to the Supplier.
10.4 Until title passes, the Customer shall hold the Goods as bailee for the Supplier, keep them separately stored and identifiable and insure them against reasonable risks.
10.5 The Customer shall not pledge or charge Goods owned by the Supplier as security.
10.6 Where legally entitled to do so, the Supplier reserves the right to repossess Goods in which it retains title.
10.7 The Customer's right to possession of Goods owned by the Supplier shall terminate if the Customer materially breaches these Terms and Conditions, becomes insolvent, enters liquidation or administration, becomes bankrupt or enters into an arrangement with creditors.
11. Assignment
11.1 The Supplier may assign the Contract or any part of it to another person, firm or company.
11.2 The Customer shall not assign the Contract without the Supplier's prior written consent.
12. Defective Goods
12.1 If Goods are defective in a material respect upon delivery and the Customer gives written notice within 30 Business Days, the Supplier may, at its option:
12.1.1 replace the defective Goods within a reasonable period; or
12.1.2 refund or credit the price paid for the defective Goods.
12.2 Goods may not be returned without the Supplier's prior written agreement.
12.3 The Supplier shall not be liable for defects resulting from fair wear and tear, wilful damage, negligence, abnormal conditions, failure to follow instructions, misuse, unauthorised alteration or acts or omissions of the Customer or third parties.
12.4 Non-defective Goods returned by the Customer may be accepted and credited at the Supplier's sole discretion.
12.5 Except where Goods are supplied to a consumer and subject to rights which cannot legally be excluded, warranties or conditions implied by statute or common law are excluded to the fullest extent permitted by law.
12.6 The Customer is responsible for ensuring that its use or resale of Goods complies with applicable statutory and regulatory requirements.
13. Customer's Default
13.1 If the Customer fails to make any payment by its due date, the Supplier may, without prejudice to any other rights:
13.1.1 suspend or cancel further provision of Goods or Services;
13.1.2 apply payments received against any outstanding invoices or obligations as the Supplier reasonably determines; and
13.1.3 charge interest on overdue amounts at 8% per annum above the Bank of England base rate, subject to applicable law.
13.2 This Clause applies if:
13.2.1 the Customer materially breaches the Contract;
13.2.2 the Customer becomes insolvent, bankrupt, enters administration, liquidation or an arrangement with creditors;
13.2.3 a receiver or similar officer is appointed over the Customer's property or assets;
13.2.4 the Customer ceases or threatens to cease carrying on business; or
13.2.5 the Supplier reasonably believes that any of the above events is likely to occur.
13.3 Where Clause 13.2 applies, the Supplier may cancel the Contract or suspend further Goods or Services without liability and all outstanding sums shall become immediately due and payable.
14. Liability
14.1 Subject to Clause 14.6, the Supplier shall not be liable for loss of profit or indirect, special or consequential losses arising from the supply of Goods or Services.
14.2 All warranties, conditions and terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.3 The Customer shall indemnify the Supplier against damages, costs, claims and expenses resulting from loss or damage to equipment caused by the Customer, its employees or agents.
14.4 Where the Customer consists of two or more persons, their obligations shall be joint and several.
14.5 The Supplier shall not be liable for delay or failure resulting from circumstances beyond its reasonable control.
14.6 Nothing in these Terms and Conditions excludes or limits liability:
14.6.1 for death or personal injury caused by negligence;
14.6.2 where exclusion or limitation would be unlawful; or
14.6.3 for fraud or fraudulent misrepresentation.
14.7 Subject to Clause 14.6:
14.7.1 the Supplier's total liability arising in connection with the Contract shall be limited to the Contract Price; and
14.7.2 the Supplier shall not be liable for loss of profit, business, goodwill or indirect or consequential loss to the fullest extent permitted by law.
15. Confidentiality
15.1 Each Party shall keep the other Party's Confidential Information confidential and shall not disclose or use such information except as necessary to perform the Contract or as otherwise permitted by this Clause.
15.2 Confidential Information may be disclosed:
15.2.1 to employees, officers, professional advisers, subcontractors and suppliers who reasonably require the information for the purposes of the Contract;
15.2.2 to governmental, regulatory or other authorities where required;
15.2.3 where disclosure is required by law; or
15.2.4 where the information has lawfully entered the public domain other than through a breach of confidentiality.
15.3 The obligations contained in this Clause shall survive termination of the Contract.
16. Subscription Services and Termination
16.1 Subscription Services
Where Services are supplied on a recurring, monthly, subscription, retainer, licence, support, hosting, software-as-a-service or other ongoing basis (“Subscription Services”), those Subscription Services shall continue until terminated in accordance with this Clause 16, unless a fixed or minimum term is specified in the quotation, specification schedule, accepted order or other written agreement between the Parties.
16.2 Minimum or Fixed Term
Where a minimum or fixed contractual term applies, the Customer shall remain liable for all charges due for that minimum or fixed term.
Notice to terminate may be given during the minimum or fixed term, but termination shall not take effect before expiry of that term unless otherwise agreed by the Supplier in writing.
16.3 Thirty Days' Notice
Following expiry of any applicable minimum or fixed term, either Party may terminate Subscription Services by giving the other Party not less than 30 calendar days' written notice.
Where no minimum or fixed term applies, the same requirement for not less than 30 calendar days' written notice shall apply.
16.4 Effective Date of Notice
The 30-day notice period shall commence on the date on which valid written notice is received or deemed to have been received in accordance with Clause 17.
16.5 Charges During the Notice Period
All Subscription Services, recurring charges, licence fees, support fees, hosting fees, software fees and other charges applicable to the Subscription Services shall remain payable throughout the notice period.
The Customer shall remain liable for all amounts falling due up to and including the effective termination date.
16.6 Billing During the Notice Period
Where charges are collected monthly or periodically in advance, the Customer authorises the Supplier to collect payments falling due during the notice period.
Where required, the Supplier may issue a final invoice for outstanding charges relating to the period up to the effective termination date.
16.7 Cancellation of Payment Does Not Constitute Notice
Cancellation of a Direct Debit, standing order, recurring card payment or other payment authority shall not constitute notice of termination.
The Customer must separately provide written notice of termination in accordance with this Clause 16 and Clause 17.
Cancellation or withdrawal of a payment authority shall not remove the Customer's liability for charges properly due under the Contract.
16.8 Access During the Notice Period
Unless otherwise agreed in writing or the Services have been suspended in accordance with these Terms and Conditions, the Customer shall continue to have access to the Subscription Services during the notice period.
16.9 Effect of Termination
On the effective termination date:
16.9.1 the Supplier's obligation to provide the relevant Subscription Services shall cease;
16.9.2 all outstanding sums owed by the Customer shall become immediately due and payable;
16.9.3 the Customer's right to access software, platforms, licences, hosting environments, CRM systems or other Subscription Services supplied by the Supplier may cease;
16.9.4 the Customer shall remain responsible for third-party charges or contractual commitments specifically entered into by the Supplier on the Customer's behalf which cannot reasonably be cancelled by the termination date; and
16.9.5 termination shall not affect rights, obligations or liabilities accrued before the effective termination date.
16.10 Customer Data and Account Closure
Where termination involves software, hosting, CRM systems, websites, digital platforms or other systems containing Customer data, the Customer shall be responsible for requesting and obtaining any reasonably available export of its data before termination.
Following termination, the Supplier may remove or delete Customer data from its systems in accordance with its data retention policies, contractual obligations and applicable data protection legislation.
The Supplier does not guarantee that Customer data will remain available following termination unless otherwise agreed in writing.
16.11 Third-Party Services
Where Subscription Services incorporate services, licences, platforms, software, domains, communications services or other facilities supplied by third parties, termination shall also be subject to any applicable third-party contractual commitments.
The Customer shall remain responsible for any third-party charges which the Supplier has reasonably incurred on the Customer's behalf and which cannot be cancelled or recovered.
16.12 Immediate Termination or Suspension
Nothing in this Clause prevents the Supplier from suspending or terminating Services immediately where permitted elsewhere in these Terms and Conditions, including circumstances involving non-payment, material breach, unlawful use, misuse of Services or insolvency.
17. Communications and Notices
17.1 All notices under these Terms and Conditions and the Contract shall be in writing.
17.2 Notices shall be deemed duly given:
17.2.1 when delivered, if delivered by courier or other messenger during the recipient's normal business hours;
17.2.2 when sent by email, provided that the sender does not receive an automated notification that delivery has failed;
17.2.3 on the fifth Business Day following posting if sent by prepaid first-class or ordinary national mail; or
17.2.4 on the tenth Business Day following posting if sent by prepaid international mail.
17.3 Notices shall be sent to the most recent postal or email address notified by the receiving Party.
17.4 A request to terminate, cancel or discontinue Subscription Services must constitute a clear written notice of the Customer's intention to terminate the relevant Services.
18. Force Majeure
Neither Party shall be liable for failure or delay in performing its obligations where such failure or delay results from circumstances beyond that Party's reasonable control.
Such circumstances may include power failure, internet or telecommunications failure, industrial action, civil unrest, fire, flood, storm, natural disaster, acts of terrorism or war, governmental action or failure of critical third-party infrastructure.
19. Waiver
No failure by either Party to enforce any provision of these Terms and Conditions or the Contract shall constitute a waiver of the right subsequently to enforce that provision or any other provision.
No waiver of any breach shall constitute a waiver of any subsequent breach.
20. Severance
If any provision of these Terms and Conditions or the Contract is found to be unlawful, invalid or unenforceable, that provision shall be deemed severed to the extent necessary.
The remaining provisions shall continue to be valid and enforceable.
21. Third Party Rights
A person who is not a Party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999 unless expressly stated otherwise.
22. Law and Jurisdiction
22.1 These Terms and Conditions and the Contract, including any non-contractual matters and obligations arising from or associated with them, shall be governed by and construed in accordance with the laws of England and Wales.
22.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or the Contract shall fall within the jurisdiction of the courts of England and Wales.