1.1. The Supplier shall supply and the Customer shall purchase the Goods and Services in accordance with the accepted order which is subject to these Conditions.
1.2 The Contract shall be to the exclusion of 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 Customer.
1.3 The business language is English.
2.1 In these Conditions:-
2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
3.1 The Supplier's employees or agents are not authorised to make any representations concerning the Goods and Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
3.3 Sales literature, price lists and other documents issued by the Supplier in relation to the Goods and Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Customer may not be withdrawn cancelled or altered prior to acceptance by the Supplier and no contract for the sale of the Goods and Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the goods and services or has accepted an order placed by the Customer by whichever is the earlier of:-
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier's authorised representative.
4.2 The specification for the Goods shall be those set out in the Supplier's sales documentation unless varied expressly in the Customer's order (if accepted by the Supplier). The Goods will only be supplied in the minimum units (or multiples) stated in the Supplier's price list or in multiples of the sales outer as specified. Orders received for quantities other than these will be adjusted accordingly, illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.
4.3 The Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Supplier's specification, which do not materially affect their quality or performance.
4.4 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier 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 Supplier as a result of cancellation.
5.1 With effect from the Commencement Date the Supplier shall, in consideration of the Fees being paid in accordance with the Terms of Payment
5.2 The Supplier will use reasonable care and skill to perform the services identified in the accepted order or otherwise agreed under this agreement.
5.3 The Supplier shall use all reasonable endeavours to complete its obligations under the Schedule, but time will not be of the essence in the performance of these obligations.
5.4 Where the Supplier's services relate the publication of content concerning the Customer on the web, in books or by whatever else means, the Supplier's services are of facilitating nature only, i.e. all responsibility for rights to that content will remain solely with the Customer.
6.1 The price of the Goods and Services shall be the price listed in the accepted order current at the date of acceptance of the Customer's order or such other price as may be agreed in writing by the Supplier and the Customer.
6.2 Where the Supplier has quoted a price for the Goods other than in accordance with the Supplier's published price list the price quoted shall be valid for 30 days only or such lesser time as the Supplier may specify.
6.3 The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (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 and services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
6.4 The price may include a recurring element, eg service charges for web hosting, which will automatically be invoices on an agreed rota. The Customer may void such invoice and cancel the respective service by notifying the Supplier to that effect within 14 days of issue of the invoice.
6.5 Except as otherwise stated under the terms of any accepted order or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are inclusive of the Supplier's charges for packaging and transport as specified in the accepted order.
6.6 The Customer agrees to pay the Price in accordance with the terms of payment.
6.7 In addition the Supplier shall be entitled to recover from the Customer his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services and not included in the accepted order.
6.8 The Customer will pay the Supplier for any additional services provided by the Supplier that are not specified in the accepted order in accordance with the Supplier's then current, applicable daily rate in effect at the time of the performance or such other rate as may be agreed. Any charge for additional services will be supplemental to the amounts that may be due for the Expenses.
6.9 All sums payable are exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Customer shall be additionally liable to pay to the Supplier.
7.1 All payments required to be made pursuant to this Agreement by either party shall be made within 14 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
7.2 The time of payment shall be of the essence of these terms and conditions. If the Customer fails to make any payment on the due date in respect of the price or any other sum due under these terms and conditions then the Supplier shall, without prejudice to any right which the Supplier may have pursuant to any statutory provision in force from time to time, have the right to charge the Customer interest on a daily basis at an annual rate equal to the aggregate of eight per cent and the base rate of the Bank of England from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.
7.3 All payments made to the Supplier for services provided under this Agreement are non-refundable.
7.4 All payments shall be made to the Supplier as indicated on the form of acceptance or invoice issued by the Supplier.
8.1 If the Customer wishes to vary any details of the accepted order it must notify the Supplier in writing as soon as possible. The Supplier shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client.
8.2 If, due to circumstances beyond the Supplier’s control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Client forthwith. The Supplier shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
9.1 The Supplier may assign the Contract or any part of it to any person, firm or company.
9.2 Any such assignment may result in any or all the assignee's terms and conditions to become part and applicable to this Agreement as appropriate.
9.3 The Supplier frequently uses the following assignees among others for certain, but not limited to these, services:-
9.4 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
10.1 Delivery of the Goods shall be made by the Supplier delivering the Goods to the place specified in the accepted order.
10.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. The Goods may be delivered by the Supplier in advance of the Delivery Date upon giving reasonable notice to the Customer.
10.3 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Supplier shall be entitled upon given written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 12.1 of these Conditions risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure.
10.4 With effect from the Commencement Date the Supplier shall, in consideration of the amount(s) being paid in accordance with the accepted order, provide the services expressly identified in the accepted order or otherwise agreed under this agreement.
16.2 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by or arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agent or employees. 11.1 If the Supplier fails to deliver the Goods or Services and any of them on the Delivery Date other than for reasons outside the Supplier's reasonable control or the Customer's or its carrier's fault:-
12.1 Risk of damage to or loss of the Goods shall pass to the Customer at:
12.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.
12.3 Sub-clause 12.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and any other goods supplied by the Supplier and the Customer has repaid all moneys owed to the Supplier, regardless of how such indebtedness arose.
12.4 Until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.
12.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
12.6 The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. In the event of repossession the Customer shall deliver up to the Supplier all Goods in which title has not passed, the cost of which shall be born by the Customer.
12.7 The Customer’s right to possession of the Goods in which the Supplier maintains legal and beneficial title shall terminate if;
13.1 If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery "condition and contents unknown" the Customer gives written notice of such defect to the Supplier within three business days of such delivery, the Supplier shall at its option:-
13.2 No Goods may be returned to the Supplier without the prior agreement in writing of the Supplier. Subject thereto any Goods returned which the Supplier is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Supplier's sole discretion the Supplier shall refund or credit to the Customer the price of such defective Goods but the Supplier shall have no further liability to the Customer.
13.3 The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Supplier's instructions (whether oral or in writing), misuse or alteration of the Goods without the Supplier's approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.
13.4 Goods, other than defective Goods returned under Conditions 13.1 or 13.2, returned by the Customer and accepted by the Supplier may be credited to the Customer at the Supplier's sole discretion and without any obligation on the part of the Supplier.
13.5 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
13.6 The Customer shall be responsible to ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory handling and sale of the Goods by the Customer is carried out in accordance with directions given by the Supplier or any competent governmental or regulatory authority and the Customer will indemnify the Supplier against any liability loss or damage which the Supplier might suffer as a result of the Customer's failure to comply with this condition.
14.1 If the Customer is not satisfied with any Goods purchased from the Supplier, the Customer may cancel the Contract and return the Goods to the Supplier and obtain a refund of the price of the returned Goods, provided:-
14.2 While the Goods remain in the Customer’s possession the Customer is under a duty to ensure that the Goods are kept safe and secure.
14.3 Where the Goods are custom made to the order of the Customer, the Customer shall not be entitled to return the Goods and receive a refund unless the Goods are faulty. The statutory rights of the Customer are unaffected.
15.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:-
15.2 This condition applies if:-
15.3 If this Condition applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, 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.
16.1 Except in respect of death or personal injury caused by the Company’s negligence, the Company will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Company’s servants or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services.
16.2 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses caused by content under the responsibility of the Customer as per 5.4.
16.3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses caused suffered by or arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agent or employees.
16.4 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
16.5 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier's obligations if the delay or failure was due to any cause beyond the Supplier's reasonable control.
17.1 Neither the Supplier nor the Client shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure was due to any cause beyond that party’s or its suppliers' reasonable control. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations. 17.2 Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:-
18.1 No waiver by the Supplier of any breach of these terms and conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of this agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given
18.2 No failure or delay on the part of any party in exercising any right, power or privilege under this agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
19.1 The Supplier reserves all copyright, intellectual property rights and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Supplier's services or facilities and are exclusive property of the Supplier or its licensors unless expressly identified in the accepted order or otherwise agreed under this agreement. The Supplier reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright.
20.1 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.
21.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:
21.2 Communications shall be deemed to have been received:
21.3 Communications addressed to the Supplier shall be marked for the attention of Martin Holzke.
22.1 This Contract contains the whole agreement between the parties and supersedes any previous Agreements, arrangements, undertakings or proposals, written or oral: between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Contract. In agreeing to this Contract, the Customer has not relied on any representation other than those expressly stated in these terms and conditions and the Customer agrees that they shall have no remedy in respect of any misrepresentation which has not been made expressly in this Contract.
22.1 If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby.
23.1 These terms and conditions shall be governed by Spanish law and the parties agree to submit to the non-exclusive jurisdiction of the Spanish courts.