Hotel Technology Management (htm) Limited
TERMS AND CONDITIONS OF SALE
In these Conditions, the following definitions apply:
Company: Hotel Technology Management (htm) Ltd
Contract: the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Company.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the supply of Goods and/or Services
Services: the services to be supplied by the Company to the Customer
Specification: in relation to Goods, any specification for the Goods that is provided by the Company to the Customer, and in relation to Services, the description of the Services provided by the Company to the Customer.
In these Conditions, the following rules apply :
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to “writing” or “written” includes faxes and e-mails.
2 Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Company in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or any other contract between the Company and the Customer for the supply of the Goods and/or Services.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3 Delivery of Goods
3.1 The Goods are sold Ex Works the Company’s storage facility in Ipswich, UK in accordance with Incoterms 2014.
3.2 The Company shall, at the Customer’s request and at the Customer’s expense, arrange for the Goods to be delivered to the location specified by the Customer (“Delivery Location”) at any time after the Company notifies the Customer that the Goods are ready for collection. The Company shall be deemed for all purposes to be acting as the Customer’s agent in arranging such further transport.
3.3 Unless otherwise agreed, the Goods will not be delivered until the Customer has paid the Company’s invoice in accordance with Clause 8.5.
3.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by force majeure or the Customer’s failure to pay the Company’s invoice or provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.5 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
3.6 If the Customer fails to accept or take delivery of the Goods within 7 days of the Company notifying the Customer that the Goods are available for delivery, the Company shall store the Goods until delivery takes place, and charge the Customer for all reasonable related costs and expenses (including insurance).
3.7 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4 Quality of Goods
4.1 The Company warrants that on delivery, and for a period of 12 months from the date of delivery (“Warranty Period”), the Goods shall:
4.1.1 conform in all material respects with their description and any applicable Specification;
4.1.2 be free from material defects in design, material and workmanship;
4.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
All other warranties, express or implied, statutory or otherwise are hereby excluded.
4.2 The Company will use all reasonable endeavours to ensure that the Goods are compatible with the Customer’s telephone system, but does accept any liability for any failure of the Goods to operate in conjunction with the Customer’s system, unless the Customer has fully and accurately completed the Company’s compatibility form and, if so requested by the Company, cooperated with the Company in testing samples of the Goods linked to the Customer’s system.
4.3 The Company will use all reasonable endeavours to procure that the Customer receives the benefit of any extended or additional warranty offered by the manufacturer of the Goods.
4.4 Subject to clause 4.5, if:
4.4.1 the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1; and
4.4.2 the Company is given a reasonable opportunity of examining such Goods; and
4.4.3 the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost,
the Company shall, at its option, promptly repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.5 The Company shall not be liable for the Goods’ failure to comply with the warranty in clause 4.1 if:
4.5.1 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or
4.5.2 the Customer alters or repairs such Goods without the written consent of the Company; or
4.5.3 the defect arises as a result of any change in the hardware or software comprised in the Customer’s telephone system;
4.5.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
4.6 If the Goods fail to comply with the warranty in clause 4.1 for any of the reasons stated above, the Company agrees that it will, at the Customer’s request and cost, endeavour to repair or resolve the problem. Except as provided in this clause 4, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.
4.7 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Company under clause 4.2.
5 Title and risk
5.1 Title to the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:
5.1.1 the Goods; and
5.1.2 any other goods that the Company has supplied to the Customer.
5.2 Until title to the Goods has passed to the Customer, the Customer shall:
5.2.1 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.2.2 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;
5.2.3 give the Company such information relating to the Goods as the Company may require from time to time.
5.3 If before title to the Goods passes to the Customer, the Customer becomes subject to any insolvency procedure or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6 Supply of Services
6.1 The Company shall provide the Services to the Customer in accordance with the Specification in all material respects.
6.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but otherwise any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
6.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
6.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill to a professional standard using suitably qualified personnel.
7 Customer’s obligations
7.1 The Customer shall:
7.1.1 ensure that the terms of the Order and the information it provides in the Specification are complete and accurate;
7.1.2 co-operate with the Company in all matters relating to the Services;
7.1.3 provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
7.1.4 provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects.
7.2 If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
7.2.1 the Company shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
7.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 7.2; and
7.2.3 the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
8 Charges and payment
8.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Company’s published price list as at the date of delivery.
8.2 The charges for Services shall be the price set out in the Order or, if no price is quoted, shall be calculated on a time and materials basis at the Company standard fee rate at the time the Services are delivered. .
8.3 The Company shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses.
8.4 The Company reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Company that is due to:
8.4.1 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification in respect of the Goods; or
8.4.2 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Goods.
8.5 Unless otherwise agreed, the Customer shall pay each invoice submitted by the Company in full and in cleared funds to a bank account nominated in writing by the Company immediately upon receipt of the invoice and before delivery of the goods.
8.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT).
8.7 Without limiting any other right or remedy of the Company, if the Customer fails to make any payment due to the Company under the Contract by the due date for payment, the Company shall have the right to charge interest on the overdue amount at the rate of 2½ per cent per month for each month or part of a month for which payment remains outstanding.
8.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
Without prejudice to its other rights and remedies, a party may terminate a Contract with immediate effect in any of the following circumstances:
9.1 if the other party materially breaches the Contract and (if the breach is capable of remedy) fails to remedy the breach within 14 days of receiving notice of its failure (including a failure to pay any sums due);
9.2 if the other party ceases to carry on business or is or becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
9.3 if the other party makes or offers to make any arrangement or composition (including any voluntary arrangement) with any one or more of its creditors, or commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or made against it, or if any resolution or petition to wind it up is issued, passed or presented (other than for reconstruction or amalgamation), or if a receiver is appointed over any of its assets or if any petition for an administration order is presented against it.
10 Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude either party’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 any matter in respect of which it would be unlawful for it to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 the Company shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 the Company’s total liability to the other in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price payable for the Goods and the Services under the Contract.
10.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.4 This clause 9 shall survive termination of the Contract.
11.1 Force majeure
11.1.1 For the purposes of these conditions, “force majeure” means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes, 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 of subcontractors. .
11.1.2 The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of force majeure.
11.1.3 If, as a result of force majeure, the Company is prevented from providing any of the Services and/or Goods for more than 12 weeks, either party shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the other.
11.2 Assignment and subcontracting
Neither party shall, without the prior written consent of the other, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Any notice given under this Agreement shall be in writing and shall be served by delivering it personally or sending it by pre-paid first-class post, fax or e-mail to the recipient’s last known address. Any such notice shall be deemed to have been received:
11.3.1 if delivered personally, at the time of delivery;
11.3.2 in the case of pre-paid recorded delivery or registered post, 48hours from the date of posting;
11.3.3 in the case of fax or email, at the time of transmission.
provided that if deemed receipt occurs before 9am on a normal working day the notice shall be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a normal working day, or on a day which is not a normal working day, the notice shall be deemed to have been received at 9am on the next normal working day.
11.4 Waiver and cumulative remedies
11.4.1 A waiver of any right under these conditions is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under these conditions 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.
11.4.2 Unless specifically provided otherwise, rights arising under these conditions are cumulative and to not exclude rights provided by law.
If a court or any other competent authority finds that any provision of these conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.6 Third parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Company.
11.8 Governing law and jurisdiction
These conditions shall be interpreted and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.