1.1. The following words shall have the following meanings when referred to in these Conditions:

Buyer: the person, firm or company who purchases the Goods from TELLIVUE

TELLIVUE: TELLIVUE Limited of Rectory Cottage, Rectory Lane, Windlesham, United Kingdom, GU20 6BW

Conditions: means these terms and conditions.

Contract: any contract between TELLIVUE and the Buyer for the sale and purchase of the Goods and the supply of Services, incorporating these Conditions.

Delivery Point: the place where delivery of the Goods is to take place under Condition 5. Goods: any goods agreed in the Contract to be supplied to the Buyer by TELLIVUE (including any part or parts of them)

Quotation: means a quotation setting out details of the Goods to be purchased and, where appropriate, the Services to be supplied and applicable prices.

Order: means an order made by the Buyer subject to the terms of the Quotation.

Services: means, where applicable, services carried out in relation to the supply and installation or maintenance of the Goods and as otherwise agreed between the parties.

Commissioning Certificate: means the certificate to be signed by the Buyer accepting the completion of the Services, in particular the installation of the Goods to be signed by the Buyer.

2. APPLICATION OF TERMS

 

2.1. Subject to any variation under Condition 2.2 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). No terms or conditions endorsed on, delivered with or contained in the Buyer’s Order, purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

2.2. These Conditions apply to all TELLIVUE’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by TELLIVUE. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of TELLIVUE that is not set out in the Contract. Nothing in this Condition shall exclude or limit TELLIVUE’s liability for fraudulent misrepresentation.

3. QUOTATIONS AND ORDERS

 

3.1. Following discussions with the Buyer, TELLIVUE may in their sole discretion issue a Quotation to the Buyer in relation to the Goods and, where applicable, the Services. Such Quotation shall be valid for a period of 14 days from its required date or until otherwise withdrawn by TELLIVUE. The Quotation shall not be an offer to sell Goods or Services but an invitation to the Buyer to make an offer to buy.

3.2. In order to accept the Quotation, the Buyer shall place an Order for the Goods (and Services), such Order to be strictly on the terms of the Quotation. If the Buyer does not accept the terms of the Quotation they shall communicate this to TELLIVUE who may, in their sole discretion, issue a further Quotation. The Order shall be deemed to be an offer by the Buyer to buy Goods and Services subject to the Conditions.

3.3. No Order shall be deemed to be accepted by TELLIVUE until a written acknowledgment of Order is issued by TELLIVUE or (if earlier) TELLIVUE delivers the Goods to the Buyer.

4. DESCRIPTION

4.1. The quantity and description of the Goods shall be as set out in TELLIVUE’s Quotation or acknowledgement of order.

4.2. All samples, drawings, descriptive matter, specifications and advertising issued by TELLIVUE and any descriptions or illustrations contained in TELLIVUE’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

5. DELIVERY

5.1. The Goods shall be delivered in accordance with the Quotation to the place agreed between the parties. TELLIVUE shall use a carrier to effect delivery.

5.2. Any dates specified by TELLIVUE for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

5.3. Subject to the other provisions of these Conditions TELIVUE shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by TELLIVUE’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.

5.4. If for any reason the Buyer fails to accept delivery of any of the Goods when they are delivered, or TELLIVUE is unable to deliver the Goods on time because the Buyer has not provided the required access, instructions, documents, licences or authorisations:

5.4.1. risk in the Goods shall pass to the Buyer (including for loss or damage caused by TELLIVUE’s negligence);

5.4.2. the Goods shall be deemed to have been delivered; and

5.4.3. TELLIVUE may store the Goods until delivery is accepted, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

5.5. The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for taking physical possession of the Goods.

5.6. TELLIVUE may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

6. NON-DELIVERY

6.1. The quantity of any consignment of Goods as recorded by TELLIVUE upon despatch from TELLIVUE’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

6.2. Any liability of TELLIVUE for proved non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or at TELLIVUE’s discretion issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

7. ACCEPTANCE OF DELIVERY AND SERVICES

7.1. Acceptance of Delivery shall take place when the Buyer (by acting through an individual appearing to have authority to accept delivery) signs the appropriate delivery document provided by the carrier.

7.2. If any Services are carried out in relation to the installation of the Goods, such Services shall be deemed accepted when the Buyer (by acting through an individual appearing to have authority to accept such Services) signs the Handover Certificate provided by TELLIVUE or their representative.

8. SERVICES

8.1. If Services are to be provided they will be set out in the Quotation or otherwise agreed between the parties.

8.2. The Buyer shall be obliged to provide all access and assistance as required by TELLIVUE to enable them to provide the Services. If such access and assistance is not provided to TELLIVUE’s satisfaction, then TELLIVUE may, at its discretion, charge the Buyer on a time and materials basis for time spent and expenses incurred even if the Services are not completed.

9. RISK/TITLE

9.1. The Goods are at the risk of the Buyer from the time of delivery.

9.2. Ownership of the Goods shall not pass to the Buyer until TELLIVUE has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and Services and all other sums which are or which become due to TELLIVUE from the Buyer on any account.

9.3. Until ownership of the Goods has passed to the Buyer, the Buyer shall hold the Goods on a trustee basis as TELLIVUE’s Bailee; where possible, store the Goods (at no cost to TELLIVUE) separately from all other goods of the Buyer or any third party but in any event in such a way that they remain readily identifiable as TELLIVUE’s property; not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and maintain the Goods in satisfactory condition and keep them insured on TELLIVUE’s behalf for their full price against all risks to the reasonable satisfaction of TELLIVUE. On request the Buyer shall produce the policy of insurance to TELLIVUE.

9.4. The Buyer may resell the Goods before ownership has passed but only in the ordinary course of the Buyer’s business and at full market value. The Buyer shall hold the proceeds of such sale exclusively for the account of TELLIVUE.

9.5. The Buyer’s right to possession of the Goods shall terminate immediately if:

9.5.1. the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

9.5.2. the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between TELLIVUE and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or

9.5.3. the Buyer encumbers or in any way charges any of the Goods; or

9.5.4. payment in relation to the Goods is late.

9.6. TELLIVUE shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from TELLIVUE.

9.7. The Buyer grants TELLIVUE, its agents and employees an irrevocable licence at any time on reasonable notice to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them. If the Buyer is buying the Goods to be used by a third party the Buyer shall procure the same irrevocable licence for TELLIVUE to enter into the premises of such third party for the same purposes of inspection and recovery.

9.8. Where TELLIVUE is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by TELLIVUE to the Buyer in the order in which they were invoiced to the Buyer and the Buyer shall account to TELLIVUE accordingly.

9.9. On termination of the Contract, howsoever caused, TELLIVUE’s (but not the Buyer’s) rights contained in this Condition 9 shall remain in effect.

10. PRICE

10.1. Unless otherwise agreed by TELLIVUE in writing, the price for the Goods shall be the price set out in Quotation. The price for the Services shall be estimated in the Quotation but such charge shall be calculated on a time and materials basis and may exceed that stated in the Quotation if more work is required than anticipated at the time the Quotation is prepared. TELLIVUE will use reasonable endeavours to communicate any significant increase in the likely cost for Services from the cost set out in the Estimate.

10.2. The price for the Goods and Services set out in the Estimate shall (unless otherwise stated) be exclusive of any value added tax or any other applicable terms.

11. PAYMENT

11.1. Subject to Condition 11.3, payment of the price for the Goods and Services is due within 30 days of the date of invoice unless otherwise agreed in writing. Time for payment shall be of the essence.

11.2. No payment shall be deemed to have been received until TELLIVUE has received cleared funds.

11.3. All payments payable to TELLIVUE under the Contract shall become due immediately on its termination despite any other provision.

11.4. The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, retention, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by TELLIVUE to the Buyer.

11.5. If the Buyer fails to pay TELLIVUE any sum due pursuant to the Contract:

11.5.1. the Buyer shall be liable to pay interest to TELLIVUE in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;

11.5.2. TELLIIVUE shall be entitled to suspend or terminate some or all Contracts with the Buyer with immediate effect.

12. WARRANTY

12.1. Unless otherwise agreed in writing, TELLIVUE warrants that (subject to the other provisions of these Conditions) for a period of 3 months from the date of delivery the Goods shall be free from defects in material and workmanship.

12.2. TELLIVUE warrants that the Services will be carried out with reasonable skill and care.

12.3. TELLIVUE shall not be liable for a breach of the warranty in Condition 12.1 unless the Buyer gives written notice of the defect to TELLIVUE within 30 days of the time when the Buyer discovers or ought to have discovered the defect; and TELLIVUE is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by TELLIVUE) returns such Goods to TELLIVUE’s place of business for the examination to take place there.

12.4. TELLIVUE shall not be liable for a breach of the warranty in Condition 12.1 if the Buyer makes any further use of such Goods after giving such notice; or the defect arises because the Buyer failed to follow TELLIVUE’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods and good trade practice; or the Buyer alters or repairs such Goods without the written consent of TELLIVUE; or the defect is a result of fair wear and tear.

12.5. Subject to Condition 12.3 and Condition 12.4, if any of the Goods do not conform with the warranty in Condition 12.1 TELLIVUE shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if TELLIVUE so requests, the Buyer shall return the Goods or the part of such Goods which is defective to TELLIVUE.

12.6. If TELLIVUE complies with Condition 12.5 it shall have no further liability for a breach of the warranty in Condition 12.1 in respect of such Goods.

12.7. Any Goods replaced shall belong to TELLIVUE and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the warranty.

12.8. Except as expressed in this Condition 12, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.

13. LIMITATION OF LIABILITY

13.1. The following provisions set out the entire financial liability of TELLIVUE (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in any way in relation to these Conditions.

13.2. Nothing in these Conditions excludes or limits the liability of TELLIVUE for death or personal injury caused by TELLIVUE’s negligence; or for any matter which it would be illegal for TELLIVUE to exclude or attempt to exclude its liability.

13.3. Subject to condition 13.2:

13.3.1. TELLIVUE’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of each Contract shall be limited to the relevant Contract price; and

13.3.2. TELLIVUE shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of contracts, loss of use of money, loss of opportunity, loss of reputation, loss of business, loss or depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for indirect or consequential loss (howsoever caused) which arise out of or in connection with the Contract.

14. ASSIGNMENT

14.1. TELLIVUE may assign the Contract or any part of it to any person, firm or company.

14.2. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of TELLIVUE.

15. FORCE MAJEURE

15.1. TELLIVUE shall not be liable to the Buyer for any delay in performance of this Agreement to the extent that such delay is due to any events outside of their reasonable control, including but not limited to acts of God, war, flood, fire, labour disputes, supplier and/or subcontractor delays, carrier failure, adverse weather, technology or telecommunication failures, internet failure, municipal failure, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions. If such delay continues for a period of three months the Buyer shall be entitled to terminate the Contract.

16. GENERAL CONTRACT PROVISIONS

16.1. Entire Agreement – These Conditions constitute the entire agreement between the parties and supersede any previous agreement between the parties relating to the subject matter of these Conditions. Each of the parties acknowledges that in entering into a Contract, it does not rely on and will have no remedy in respect of any statement of fact or opinion not recorded in these Conditions (whether negligently or innocently made), except for any representation made fraudulently.

16.2. Severability – If any of the provisions of these Conditions are judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced. 16.3. Waiver – No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

16.4. Rights of Third Parties – A person who is not a party to a contract has no right to benefit under or to enforce any term of this Agreement within the Contracts (Rights of Third Parties) Act 1999.

16.5. Assignment – The Buyer will not assign, sub-contract or otherwise deal with a contract or any rights and obligations under a contract without the prior consent of TELLIVUE.

16.6. Governing Law and Jurisdiction – These Conditions are governed by and construed according to English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

16.7. Notices – Any notice given under a contract by either party to the other must be in writing and may be delivered personally or by first-class post, and in the case of post will be deemed to have been given two working days after the date of posting. Notices will be delivered or sent to the addresses of the parties as advised from time to time or to any other address notified in writing by either party to the other for the purpose of receiving notices after the date of this Agreement.