In these Terms:
1.1 ‘Agreement’ means the agreement between BOFA and You for the sale and purchase of the Goods and Services as defined in any purchase order and comprises of these Terms and any related dispatch notes and/or order confirmations;
1.2 ‘BOFA’ means BOFA International Ltd and any of its appointed agents and representatives;
1.3 ‘Goods’ means the equipment and ancillary equipment and such other products ordered by You and specified in the dispatch notes issued by BOFA to You;
1.4 ‘Price’ means the price for the Goods and/or the Services as defined in clause 5.1;
1.5 ‘Services’ means the installation, training and/or maintenance services to be provided by BOFA in relation to any BOFA equipment in relation to which You have requested such services (“the Equipment”);
1.6 ‘You’ means person, sole trader, firm or company named as the Customer in any purchase order.
1.7 Intellectual Property Rights means, patents, registered designs, trademarks, service marks, applications for any of the foregoing, copyrights, design rights, semiconductor topography rights, database rights, rights in software, know-how, trade secrets and confidential information and all other forms of Intellectual Property Rights having equivalent or similar effect to any of the foregoing which may exist anywhere in the world.
2.1 These terms and conditions of business (“Terms”) apply to all contracts between BOFA and You in relation to sale and supply of Goods and provision of any Services by BOFA to You. By placing an order for the Goods and/or Services with BOFA, You agree to be bound by these Terms. Acceptance of Your order and the completion of contract between You and BOFA will take place on either despatch of the Goods or first part of the Goods to You or on confirmation by BOFA of Your order for the Services.
2.2 BOFA reserves the right to make any changes in any specification in relation to the Goods which are required to conform with any applicable safety or other requirements or which do not materially affect the quality or performance of the Goods.
2.3 All specifications, drawings and technical documents supplied to You by BOFA are supplied solely for use by You in connection with the Goods and all specifications, drawings and/or technical documents shall be treated by You as confidential information and shall not be disclosed to any third party without BOFA’s prior written consent.
2.4 Any advice and recommendations that we may give to You are subject to You having provided us with sufficient and accurate information of Your requirements and whilst given by with due care and skill, should not be relied upon by You, unless confirmed in writing by BOFA.
2.5 You acknowledge and agree that:-
2.5.1 Any and all Intellectual Property Rights in and to any goods or any parts therefore or design therof shall be and shall remain vested in BOFA.
2.5.2 Without prejudice to sub-clause 2.5.1 above all drawing, documents, models, designs, software and the copyright or other Intellectual Property Rights in any of the foregoing supplied to you shall belong to Bofa and where these consist of drawings in paper or electronic format they shall be returned to BOFA immediately upon request.
3.1 Whilst all estimated delivery dates are given in good faith and BOFA will use its reasonable endeavours to adhere to such estimates, any delivery dates and times given are estimates only. Time shall not be of the essence.
3.2 When appropriate, BOFA reserves the right to make deliveries in instalments.
3.3 Any requests by You for amendment of delivery schedule previously ordered by You, shall be made minimum of twenty-two days prior to intended delivery date.
3.4 You are required to inspect the Goods upon receipt and notify BOFA in writing within seven days from delivery of any alleged non-conformance of the Goods (in relation to quality, number or otherwise). In absence of any such notifications, upon expiry of the seven day period from delivery, the Goods are deemed to have been conformant and accepted by You.
3.5 If you fail to take receipt of delivery by BOFA of any Goods, then, without prejudice to any of BOFA’s other rights, BOFA may:
3.5.1 issue an invoice in respect of the Goods, as if they had been delivered on the proposed date; and
3.5.2 store the Goods and charge You for the costs (including insurance) of such storage; and/or
3.5.3 sell the Goods to a third party at the best price readily obtainable and (assuming You have paid for the Goods and after deducting all storage and selling expenses) reimburse or credit You any balance.
3.6 In relation to the provision of any Services by BOFA to You, You are required to ensure that:
3.6.1 BOFA has sufficient access to the Equipment;
3.6.2 the Equipment is properly kept in an environment as advised by BOFA;
3.6.3 the Equipment is used only in accordance with BOFA instructions;
3.6.4 equipment is requested to be serviced at the regular intervals as advised by BOFA; and
3.6.5 in the event of any mal-function or anticipated mal-function of the Equipment, You cease the use of the Equipment immediately.
4. RISK AND PROPERTY
4.1 The Goods shall remain the sole property of BOFA and the title in them shall not pass to You until any accounts outstanding at the time of delivery by You to BOFA have been fully settled.
4.2 You shall assume risk for loss or damage to Goods upon delivery of the Goods to You and are required to insure them for their full market value until the title in the Goods passes to You. Until title in the Goods passes to You:
4.2.1 You agree to keep the Goods separate from any other goods or property and to identify them as property belonging to BOFA; and
4.2.2 BOFA shall be entitled to repossess any of the Goods and you agree to ensure that we or any of our appointed third party will have sufficient access to Your premises in order to repossess the Goods.
5.1 The Price shall be the price quoted or, where no price has been quoted (or the prices quoted are no longer valid), the price listed in BOFA ‘s published price list current at the date of acceptance of the order.
5.2 Any Price is exclusive of VAT and which shall be payable in addition to the Price. Unless otherwise explicitly agreed in writing, all Prices are on an ex works basis and you shall be liable to pay any transportation, packaging and insurance costs reasonably incurred by BOFA in relation to Goods and/or provision of Services.
5.3 If before delivery of the Goods and/ or Services an event over which BOFA has no control occurs (including but not limited to foreign exchange fluctuation, any alteration in taxes or duties payable or a significant increase in the cost of labour or materials) which increases the cost of Goods to BOFA, BOFA has the right to increase the Price to reflect the increase in costs.
5.4 BOFA reserves the right, by giving notice to You at any time before delivery, to increase the Price to reflect any increase in the cost to BOFA which is due to any change in delivery dates or quantities of the Goods or in the specifications which are requested by You or any delay caused by any instructions from You or failure by You to give BOFA adequate information or instructions.
6. TERMS OF PAYMENT
6.1 If You wish to establish a credit account with BOFA you must supply two trade references and one banker’s reference, all of which will be taken up and any acceptance of such credit account will be at the complete discretion of BOFA. You will not be entitled to deduct from or set off against such account any sums which may become due from BOFA without the prior written consent of the director of BOFA.
6.2 Except as provided in the above clause 6.1, BOFA shall be entitled to invoice You for the Goods and Services at any time after the Goods have been delivered, or in the event that that the Goods are to be collected by You, at any time after You have been informed by BOFA that the Goods are ready for collection.
6.3 All invoices are payable in full and without any deduction of any sort within 30 days of the date of such invoice. Time of payment shall be of the essence. Receipt of payment will only be issued upon request.
6.4 All payments by You shall be applied to invoices and to Goods listed in such invoices in the sequence determined by BOFA at its sole discretion.
6.5 In the event of any failure or threatened failure by You not to make payment on the date any such payment is due then, without prejudice to any other right or remedy available to BOFA, BOFA shall be entitled to:
6.5.1 cancel the Contract or suspend any further deliveries under it to You; and/or
6.5.2 sue for any amounts payable; and/or
6.5.3 charge interest on the amount unpaid, both before and after judgement at the rate of 4% above Barclays Bank plc base rate from time to time in force, until payment in full is made You (part of the month shall be treated as a whole month for the purposes of calculating the interest payable); and/or
6.5.4 BOFA may suspend or cancel any Services supplied to or to be supplied to You whether under this Contract or any separate contract entered into between the parties.
7. WARRANTIES & LIABILITY
7.1 BOFA warrants that at the date the Goods are delivered the Goods will correspond with its sales literature in force at the time being and any other specifications that may have been agreed in writing by BOFA and You, and will be free from defects in materials and workmanship for a period of 12 months from the date of the invoice relating to such Goods provided that the this warranty does not cover normal wear and tear and in addition such warranties shall be null and void if the Goods are modified, improperly installed or used, damaged wilfully, by accident or by neglect or by failure to follow the specified maintenance schedule provided in the user manual or in the event of any parts being improperly installed or replaced (other than by an authorised representative of BOFA).
7.2 All terms, conditions or warranties implied by statutory or common law relating to the Conditions (as defined below) are excluded from this Contract to the fullest extent permitted by law;
7.3 The ‘Conditions’ shall mean:
7.3.1 the correspondence of the goods with any description; and/or
7.3.2 the quality of the goods; and/or
7.3.3 the fitness of the goods for any purpose(s) whatsoever (whether made known to BOFA or not).
7.4 You acknowledge and agree that where a sample of the Goods have been shown and/or inspected by You, the sole purpose of so doing was to enable You to judge the quality of the bulk; and it does not constitute a sale by sample.
7.5 You shall notify BOFA in writing as soon as reasonably possible after discovery of any defect that would not have been discoverable at the time of delivery or failure of the Goods (“Defect notification”).
7.6 BOFA shall not be under liable, if at the time of Defect notification the title in the Goods in question has not passed to You in accordance with clause 4.1 above.
7.7 If liable, BOFA will, at its option, either make good by repair or the supply of a replacement, defects which, under proper use, appear in the Goods within a reasonable time on receipt of the Goods returned (at Your cost) and claimed to be defective, provided that:
7.7.1 BOFA is satisfied that the defects arise solely from faulty design (other than a design made, furnished or specified You for which BOFA has disclaimed responsibility in writing), materials or workmanship; and
7.7.2 the repaired or replacement Goods will be delivered to You to the original place of delivery, but otherwise subject to the provisions of this Contract.
7.8 As an alternative to Clause 7.7, BOFA shall be, in its absolute discretion, entitled to refund the price of the Goods to You
7.9 The remedies provided in Clause 7.7 and 7.8 are without prejudice to the other provisions of these Terms.
7.10 In no circumstances whatsoever (subject to clause 7.11 below) whether as a result of breach of contract, warranty or tort (including negligence) shall BOFA be liable for any consequential or indirect damages or losses (including but not limited to loss of profit or revenue), damage to associated equipment, cost of capital, cost of such substitute products, loss of facilities or loss for claims of purchases, customs or other such damages.
7.11 Nothing in these Terms shall seek to exclude BOFA’s liability for any death or personal injury to the extent that it results from negligence.
7.12 BOFA’s liability to You shall be limited:
7.12.1 In relation to any direct physical damage to Your property to the extent that it results from BOFA’s actions or omissions up to a maximum of £250,000 in respect of any one event or series of related events, or up to a maximum of £500,000 in respect of any series of unrelated events which take place within a single calendar year;
7.12.2 In relation to any other costs, losses and/or liabilities incurred by You as a consequent of our breach of this Agreement shall be limited to a total sum equivalent to the total price of the Goods and/ or Services.
7.13 Subject to clause 7.11 above, no action regardless of form arising out of a transaction under this Agreement may be brought by You more than two years after the course of action has arisen.
8. THIRD PARTY CLAIMS
8.1 BOFA shall at its own expense defend any action against You and pay all damages and costs awarded against You (except to the extent that You are entitled to recover such sums under any policy of insurance) based on a claim that any of the Goods constitute an infringement of any intellectual property right of any third party (“a Claim”) PROVIDED THAT:
8.1.1 You shall promptly notify us in writing of any notice or anticipated notice of any Claim
8.1.2 BOFA shall have sole control of the defence of any action on a Claim and all negotiations for settlement or compromise;
8.1.3 You shall allow your name to be used in the proceedings if necessary and provide promptly all assistance reasonably required by BOFA in defending such action; and
8.1.4 You shall take all reasonable steps to mitigate or reduce any damages and costs which may be awarded against You as a result of a Claim
8.2 BOFA may at its ultimate discretion, attempt to procure the right for You to continue to use the Goods, modify the Goods so that they are non-infringing or terminate the Contract in so far as it applies to the Goods that are the subject matter of any Claim.
8.3 In no event shall BOFA have any liability with respect to any Claim based on the use of the Goods in combination with any other product or equipment not supplied by BOFA.
9.1 You may not cancel any order unless we agree in writing (and clause 9.2 shall then apply).
9.2 If an order is cancelled (for any reason) you are then to pay us for all stock (finished or unfinished) that we may then hold (or to which we are committed) for the order, as well as a stocking fee of 15% of the value of goods.
10.1 Without prejudice to any other right or remedy it might have, either party may terminate this Agreement at any time by notice in writing to the other party, such notice to take effect as specified in the notice:
10.1.1 if the other party repeatedly (more than 3 times) commits a remediable breach or is in substantial breach of this Contract and, in the case of a breach capable of remedy, the breach is not remedied within 30 days of the other party receiving notice specifying the breach and requiring it to be remedied; or
10.1.2 if the other party becomes insolvent, or if an order is made or a resolution is passed for the winding up of the other party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the other party’s assets or business, or if the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
10.2 Either party may terminate this Agreement by giving the other party three months prior written notice.
11.1 These Terms and our order confirmation and/ or dispatch note constitutes the agreement between Bofa and you and supersede any prior agreement, representation, or understanding whether made orally or in writing save as expressly incorporated in these terms.
11.2 This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
11.3 You may not assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of Your rights and obligations under this Agreement without the prior written agreement of BOFA.
11.4 No failure or delay by BOFA in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
11.5 Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either party may terminate this Agreement by written notice to the other party.
11.6 Any notice to be given under this Agreement shall be in writing and shall be sent by first class recorded mail or by facsimile to the last known address of the relevant party and be deemed to have been received in the case of posting two working days after the day of posting and in the case of facsimile, the next working day after transmission provided that a transmission report is generated by the sender’s facsimile machine confirming successful transmission.
11.7 In the event of any conflict between these Terms and any other document forming part of this Agreement, these Terms shall prevail.
12. DISPUTE RESOLUTION
12.1 In the event of a dispute arising, the parties shall request the president of the Law Society to appoint a member of the legal profession (solicitor/ barrister) of at least 7 years of post qualification experience to act as an expert, not an arbitrator to resolve any such dispute. Such expert shall be entitled to regulate the proceedings applicable to such dispute resolution process as he sees fit. The decision of such an expert shall be binding and final on both parties and the parties agree to bear the costs of such an expert in the proportions determined by the expert.
13.1 The Agreement governed by these Terms shall be subject to English law and jurisdiction of English Courts and both parties agree that any proceedings under this Agreement shall be commenced in either Bournemouth or Poole County Court and to the enforcement a judgment of such courts in any jurisdiction.