Terms and ConditionsTerms and Conditions
Call Portal Ltd service terms & conditions
1. Definitions
In these conditions the following expressions shall have the following meanings:
"Company" means Call Portal Limited or other trading styles of the same;
"Conditions" means the standard terms and conditions relating to the sale of Goods set out in this document and includes any special terms and conditions agreed in writing between the Purchaser and the Company;
"Contract" means the contract for the purchase and sale of the Goods;
"Goods" means the Products and/or any Specified Services which the Company is to supply in accordance with these Conditions;
"Manufactured Products” means the hardware manufactured by the Company;
"Place of Use" means that part of the Purchaser's premises at the Site where the Goods are to be provided;
"Products" means the Manufactured Products and the Third Party Products;
"Purchaser" shall mean the person, firm or company who accepts a quotation from the Company for sale of Goods or for whose order for Goods is accepted by the Company;
"Site" means the address for delivery of the Goods;
"Specified Services” means the installation and any other services agreed to be provided by the Company to the Purchaser;
"Third Party Products” means third party manufactured hardware and software;
"Writing" includes facsimile transmission, 'Email' and comparable means of communication.
2. General
2.1 The Company shall sell and the Purchaser shall purchase the Goods in accordance with any written quotation of the Company which is accepted by the Purchaser within 30 days (or such other period as is specified in the quotation) of the date of such written quotation, or any written order of the Purchaser which is accepted by the Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion to any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Purchaser.
2.2 No employee or agent of the Company has any authority to add to or vary these Conditions or to make any representation or warranty to the Purchaser unless such addition or variation or representation or warranty is in Writing and signed by a director or some other person authorised on behalf of the Company.
2.3 Any advice or recommendation given by the Company or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Products which is not confirmed in Writing by the Company is followed or acted upon entirely at the Purchaser's own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.4 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 the Company in relation to the Goods shall be subject to correction without any liability on the part of the Company.
3. Orders and Specifications
3.1 All orders submitted by the Purchaser must be in writing and shall not be deemed to be accepted by the Company unless and until confirmed in writing by a director or some other person authorised on behalf of the Company. Verbal orders will only be deemed made if confirmed in Writing by the Purchaser within 7 days thereafter.
3.2 The Purchaser shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification or design) submitted by the Purchaser and for giving the Company any necessary information, materials and documentation relating to the Goods within sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity and description of and any specification for the Goods shall be those set out in the Company’s quotation (if accepted by the Purchaser) or the Purchaser’s order if accepted by the Company.
3.4 The Company reserves the right to make any changes in the specification or design of the Goods which are required to conform with any applicable safety or other statutory requirements or where the Goods are to be supplied to the Company’s specification or design which do not materially affect their quality.
3.5 No order which has been accepted by the Company may be cancelled by the Purchaser except with the agreement in writing of the Company and on terms that the Purchaser shall indemnify the Company 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 the Company as a result of cancellation.
4. Price
4.1 The price of the Goods shall be the Company's quoted price or where no price has been quoted (or the quoted price is no longer valid) the price listed in the Company's published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only (or such other period as is specified in the quotation) or until earlier acceptance by the Purchaser.
4.2 The Company reserves the right by giving notice to the Purchaser at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation or alteration of duties, significant increase in the costs of labour, material or other costs of manufacture) any change in delivery dates, quantity or specifications for the Goods which is requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions or any other cause attributable to the Purchaser.
4.3 The price is exclusive of any applicable value added tax which the Purchaser shall be additionally liable to pay to the Company.
5. Payment
5.1 Subject to any special terms agreed in writing between the Purchaser and the Company the Company shall be entitled to invoice the Purchaser for the price of the Goods on or at any time after delivery of the Goods.
5.2 The Purchaser shall pay the price of the Goods on demand but in any case not later than 30 days from the date of the Company's invoice notwithstanding that delivery may not have taken place and that property in the Products has not passed to the Purchaser. The time for payment of the price shall be of the essence of the Contract.
5.3 If the Purchaser fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company the Company shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries of Goods to the Purchaser;
5.3.2 appropriate any payment made by the Purchaser to such of the Goods (or the Goods supplied under any other contract between the Purchaser and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser); and
5.3.3 charge the Purchaser interest (both before any after any judgement) on the amount unpaid at the rate of 4% per annum above Bank of Scotland base rate from time to time until payment in full is made.
5.4 The Purchaser shall pay the price for the Goods in full and without deduction or set off.
5.5 The Company reserves the right to refuse to execute any order if the arrangements for payment or the Purchaser's credit is not satisfactory to the Company.
6. Preparation of the Place of Use
6.1 Unless otherwise agreed between the Company and the Purchaser in Writing, the Purchaser shall at its own expense complete the preparation of the Place of Use in accordance with the Company's Written instructions on or before the date quoted for delivery of the Goods. Preparation of the Place of Use could include such work as (without limitation):
6.1.1 the provision and maintenance of an electricity supply suitably switched at any number of points specified by the Company;
6.1.2 the provision and maintenance of telephone lines and any relevant connection charges;
6.1.3 the obtaining of any necessary third party consents, approvals, permits and licences necessary for the provision of the Specified Services;
6.1.4 the making of any structural alterations to the Site necessary;
6.1.5 the linking of Products to telecommunications networks including purchasing and installing all equipment necessary to make such connection.
6.2 The Company shall not be liable for any loss or damage resulting from the breach by the Purchaser of its obligations under clause 6.1 above.
7. Installation and Acceptance
7.1 The Specified Services will be provided only between the hours 9am and 5pm Monday to Friday excluding bank and other public holidays.
7.2 The Company shall commence the Specified Services at the Place of Use on the date agreed between the Company and the Purchaser and shall inform the Purchaser when the Specified Services are completed.
7.3 The Purchaser shall accept (and in default shall be deemed to accept) the performance of the Specified Services by the Company upon the date the Company informs the Purchaser that the Specified Services are completed.
8. Delivery
8.1 Any date quoted by the Company for delivery of the Goods is approximate only and the Company shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in Writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Purchaser.
8.2 Where the Goods are to be delivered by instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the Contract as a whole as repudiated.
8.3 If the Purchaser requests that delivery be delayed or fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery then without prejudice to any right or remedy available to the Company, the Company may invoice the Purchaser for the price of the Goods and:-
8.3.1 store the Products until actual delivery and charge the Purchaser for the reasonable costs (including insurance) of storage; or
8.3.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Purchaser for any shortfall below the price under the Contract.
9. Tests and Inspection
9.1 Unless otherwise agreed by the Company in Writing, in the event that special tests and inspections are required by the Purchaser in relation to the Products, the procedure for these shall be agreed in Writing by the Company and the Purchaser and shall be carried out at the Company's premises at the expense of the Purchaser. When any Products have been passed as satisfactory by an authorised representative of the Purchaser, the same shall be deemed to comply with the Company's obligations under the Contract in all respects and the Purchaser waives all and any claims thereafter that the Products are defective or unsatisfactory in any respect.
9.2 Unless otherwise agreed by the Company in Writing, the Company is entitled to benefit from all usual trade margins or tolerances.
10. Obligations of the Purchaser
10.1 The Purchaser will:
10.1.1 permit the Company, its employees, agents or subcontractors to enter the Site at all reasonable times for the purpose of providing the Goods and perform its obligations under this Contract;
10.1.2 provide the Company with notice of intended building works which may affect the Goods;
10.1.3 promptly notify the Company in Writing of any defect in the Specified Services or any defect or loss or damage to the Products.
10.2 Where the Company is to provide maintenance services in relation to any Products sold to the Purchaser hereunder the Purchaser shall enter into a separate Maintenance Service Agreement with the Company.
11. Risk and Property
11.1 Risk of damage to or loss of the Products shall pass to the Purchaser at the time of delivery.
11.2 Notwithstanding delivery and the passing of risk in the Products or any other provision of these Conditions, property in the Products shall not pass to the Purchaser until the Company has received in cash or cleared funds payment in full of the price for the Products.
11.3 Until such time as the property in the Products passes to the Purchaser the Purchaser shall:
11.3.1 hold the Products as the Company’s fiduciary agent and bailee; and
11.3.2 as far as reasonably practicable keep the Products separate from those of the Purchaser and third parties and properly stored protected and insured and identified as the Company’s property.
11.4 The Purchaser’s right to possession of the Products shall cease if:
11.4.1 the Purchaser has not paid for the Goods in full by the time by which payment is due under these conditions; or
11.4.2 a bankruptcy or insolvency petition is presented in respect of the Purchaser or the Purchaser becomes bankrupt or insolvent or the Purchaser makes or intends to make a proposal for any arrangement or composition with the Purchaser’s creditors; or
11.4.3 a petition for an administration order or winding up order is presented in respect of the Purchaser or the Purchaser goes into liquidation whether compulsory or voluntary; or
11.4.4 the Purchaser shall have a receiver or administrative receiver or manager appointed in respect of the whole or any part of the Purchaser’s undertaking or property;
On cessation of the Purchaser’s right to possession of the Products in accordance with this condition the Purchaser shall at its own expense make the Products available to the Company and allow the Company to repossess them.
11.5 The Purchaser hereby grants the Company its agents and employees an irrevocable licence to enter any premises where the Products are stored or have been installed in order to repossess them or inspect them at any time.
12. Warranties
12.1 The Company warrants to the Purchaser that:
12.1.1 (except in relation to plastic moulding in respect of which no warranties are given) in relation to Manufactured Products such Manufactured Products will be free from defects for a period of twelve months from the date of delivery and for the avoidance of doubt this warranty does not extend to Third Party Products;
12.1.2 it will perform the Specified Services with reasonable care and skill.
12.2 In relation to Third Party Products, the Company gives to the Purchaser the same warranties or guarantees (if any) as the manufacturer or supplier of such Third Party Products gives to the Company for the same period and subject to the same conditions. No other warranties are given by the Company in relation to Third Party Products.
12.3 The above warranties are given by the Company subject to the following conditions:
12.3.1 the Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Purchaser;
12.3.2 the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, improper treatment, abnormal working conditions, (including but without limitation failure of third party services to the Site for any reason whatsoever) failure to follow the Company's or the Manufacturer's instructions, (whether oral or written), servicing faults, misuse, mechanical, chemical, electro-chemical, electrical, physical effects or alteration, interference or repair of the Goods without the Company's approval;
12.3.3 the Company shall be under no liability under the above warranty, or any other warranty, condition or guarantee, if the total price for the Goods has not been paid by the due date for payment or if the Purchaser is in breach of any of its obligations under this Contract.
12.4 In the event that the Purchaser returns any Products to the Company under the terms of any warranty, the Purchaser shall be responsible for all costs and expenses of carriage relating thereto. Should any Products returned be found not to be in breach of warranty, such Products will be returned to the Purchaser by the Company with the Purchaser being responsible for all costs and expenses of carriage together with the Company's standard retest charge for Products as published from time to time.
13. Exclusions of Liability
13.1 Nothing in this Condition 13 shall exclude or restrict the Company’s liability for death or personal injury caused by the Company's negligence or shall exclude or restrict the Company’s liability for fraudulent misrepresentation or other fraud.
13.2 Subject to Condition 13.1, except as expressly set out in this Contract, the Company gives no warranty as to the condition, satisfactory quality or fitness for any purpose of the Goods and all express and implied conditions and warranties are hereby excluded to the fullest extent allowed by the law.
13.3 Subject to Condition 13.1, the Company shall not be liable to the Purchaser by reason of any representation or any implied warranty condition or other term or duty of common law or under the express terms of the contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Purchaser, and/or the provision of the Specified Services except as expressly provided in these Conditions.
13.4 Subject to Condition 13.1, any claim by the Purchaser which is based on any defect in the quality or condition of the Goods shall (whether or not delivery is refused by the Purchaser) be notified to the Company within 7 days from the date of delivery or, where the defect was not apparent on initial inspection, within a reasonable time after discovery of the defect. If delivery is not refused and the Purchaser does not notify the Company accordingly the Purchaser shall not be entitled to reject the Goods and the Company shall have no liability for such defect and the Purchaser shall be bound to pay the price of the Goods being delivered in accordance with the Contract.
13.5 Subject to Condition 13.1, where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods is notified to the Company in accordance with these Conditions the Company’s liability shall be limited to repair or replacement of the Goods (or the part in question) or at the Company’s sole discretion refunding to the Purchaser the price of the Goods (or a proportionate part of the price) and the Company shall have no further liability to the Purchaser.
14. Force Majeure
14.1 The Company shall not be liable to the Purchaser or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Company’s reasonable control:
14.1.1 act of God, explosion, flood, tempest, fire or accident;
14.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
14.1.3 acts, restrictions, regulations, bye-laws, prohibition or measures of any kind on the part of any governmental parliamentary or local authority;
14.1.4 import or export regulations of embargoes;
14.1.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Company or any third party);
14.1.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
14.1.7 power failure or break down in machinery.
15. Termination
15.1 Without prejudice to any other rights and remedies which the Company may possess, the Company shall be entitled by notice to the Purchaser to terminate this Contract and all the Company’s outstanding obligations hereunder if:
15.1.1 the Purchaser is in arrears with any payment due hereunder for a period of 7 days or more; or
15.1.2 the Purchaser provides materially inaccurate or misleading facts or information in connection with the Contract; or
15.1.3 a bankruptcy or insolvency petition is presented in respect of the Purchaser or the Purchaser becomes bankrupt or insolvent or the Purchaser makes or intends to make a proposal for any arrangement or composition with the Purchaser’s creditors; or
15.1.4 a petition for an administration order or winding up order is presented in respect of the Purchaser or the Purchaser goes into liquidation whether compulsory or voluntary; or
15.1.5 any execution or distress of seizure is levied on or sued out against any of the real or personal property of the Purchaser; or
15.1.6 the Purchaser shall have a receiver or administrative receiver or manager appointed in respect of the whole or any part of the Purchaser’s undertaking or property; or
15.1.7 the Purchaser is unable to pay the Purchaser’s debts.
15.2 Upon termination under Condition 15.1 the Company shall be entitled to suspend any further deliveries of the Products or performance of Specified Services under the Contract without any liability to the Purchaser and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. Termination of the Contract shall not affect any rights which have accrued prior to termination.
16. Intellectual Property and Confidentiality
16.1 The Purchaser agrees that copyright in any drawings, prints, specifications and designs including any stored in a computer retrievable system:
16.1.1 produced by the Purchaser for the Company in connection with the design, manufacture and production of the Goods shall vest in the Company; and
16.1.2 produced by the Company shall remain the Company's property and may not be copied or made accessible to third parties in any way by the Purchaser without the prior written consent of the Company.
16.2 Intellectual property rights existing in any tools made for the manufacture of the Products and provision of the Specified Services for any Purchaser shall remain the property of the Company notwithstanding that the Purchaser may have been charged with part of the cost of such manufacture.
16.3 If Products are supplied by the Company or Specified Services performed in accordance with a specification or design submitted by the Purchaser, the Purchaser shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent copyright design trademark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Purchaser’s specification or design.
16.4 The Purchaser shall take all such steps as shall be necessary to protect all and any confidential information of the Company which comes into its possession and without prejudice to the generality of the foregoing shall not copy or reproduce the same nor distribute, sell or disclose the contents of the same to any third party without the prior written consent of the Company, the Compnay will also endevour to do the same with regards data that may from time to come come into the Companies possecion.
16.5 The Purchaser undertakes to the Company to make its employees, agents and subcontractors aware of the provisions of this clause 16 and to use its best endeavours to ensure compliance by its said employees, agents and subcontractors with its obligations hereunder.
16.6 The Company reserves the right to use any project for marketing purposes without any further permission from the Purchaser. For the avoidance of doubt this may include such activities as display of the Purchasers logo on the Company website or general reference to the Purchaser and the Goods supplied both verbally or in writing.
17. Miscellaneous
17.1 The Purchaser shall be responsible for compliance with all relevant laws and regulations and for obtaining and maintaining at its expense any import or export licences customs clearance exchange control consent or other authorisations and permits required in connection with the purchase of the Products.
17.2 The Company may perform its obligations hereunder through agents or subcontractors, the contract may be assigned by the Company but shall not be assigned by the Purchaser without the Company’s prior written consent. References herein to the Company include references to any assignee of the Company’s rights or obligations under this contract.
17.3 This Contract constitutes the entire agreement between the parties as to the matters to which it relates and supersedes all previous agreements between the parties and may only be varied by written agreement of the parties. All prior representations or statements made before this Contract was entered into and not expressly repeated in it are withdrawn and of no effect.
17.4 If any provision of this Contract is held by any Court or other competent authority to be void or unenforceable in whole or in part this Contract shall continue to be valid as to the remaining provisions.
17.5 A notice to be given hereunder by either party to the other may be served personally upon the other or by sending the same by pre-paid post addressed to the other party in the case of the Company at its registered office and in the case of the Purchaser at its registered office or address for delivery of the Goods or last known address. Any notice sent by post shall be deemed to be served on the date after posting and in proving such service it shall be sufficient to show that a letter containing the same was properly addressed stamped and posted.
17.6 This Contract and these conditions shall be governed by and construed in accordance with English law and both the Company and the Purchaser shall submit to the non exclusive jurisdiction of the English courts.
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