Terms and Conditions of Sale
“Company" shall mean Horizon Technologies Consultants, Ltd. 400 Thames Valley Park, Reading RG6 1PT, United Kingdom (registered in England and Wales under Number 03886131).
"Conditions" shall mean these Terms and Conditions of Sale.
“Confirmation” shall mean written confirmation of the Company’s acceptance of the Customer’s Purchase Order.
"Contract" shall mean all documents exchanged in the process of conclusion of a Contract, i.e. the Quotation sent by the Company including the Conditions, the Purchase Order sent by the Customer, and the Confirmation of Purchase Order by the Company as specified in clause 4 (Contracting process) hereof.
"Customer" shall mean the Customer specified in the Purchase Order.
“Delivery Date(s)” shall mean the estimated dates for delivery of Goods and/or performance of Services as specified in the Contract.
“End-User(s)” shall mean the ultimate recipient of the Goods and/or Services, and any party that is intended to utilize the Goods and/or Services.
"Goods" shall mean all articles and materials to be supplied under the Contract.
“Intellectual Property” shall mean any and all rights and interests in patents, trademarks, service marks, design rights (whether capable of registration or not); applications for any of the above rights, copyright, trade or business names or other similar rights whether capable of registration or not in any country.
“Parties” shall mean a joint reference to the Company and the Customer.
"Purchase Order" shall mean the purchase order issued by the Customer to the Company for the supply of Goods and/or Services.
“Quotation” shall mean the Company’s quotation for sale of goods and/or services specifying terms of the sale to which these Conditions are attached.
"Services" shall mean all services to be performed under the Contract, which are not Goods.
2. Conditions as an integral and inseparable part of the Contract
(a) These Conditions form an integral and inseparable part of any and all Contracts made between the Company and the Customer for the supply of Goods and/or Services.
(b) The Company contracts only on the basis of these Conditions.
(c) The Customer hereby acknowledges and agrees that unless otherwise agreed, any printed or other standard terms and conditions of the Customer attached to its Purchase Order or to any other document shall not be applicable to the relationship between the Company and the Customer and that they are hereby expressly excluded.
3. Order of Precedence
If there is any inconsistency between provisions of the Contract, the following order of precedence, where such documents exist, shall be attributed to the documents forming the Contract:
(d) Purchase Order
(e) Governing law
4. Contracting process
A Contract is concluded as a result of the following process: the Company issues a Quotation including the Conditions to the Customer specifying the goods and/or services in which the Client expressed interest. The Customer then places a Purchase Order which has to reference the number of the Company’s Quotation and acceptance of the Conditions. Upon receiving the Purchase Order, the Company decides on its acceptance and if it accepts the Purchase Order, the Company sends a Confirmation of the Purchase Order to the Customer. For the avoidance of doubt, the Parties hereby acknowledge and accept that no order placed by the Customer shall be binding on the Company unless and until it has been accepted in writing by the Company by a Confirmation. The Quotation (including the Conditions), the Purchase Order and the Confirmation form the Contract between the Company and the Customer.
5. Prices and Option for additional Goods and/or Services
All prices are Ex-Works HTC, United Kingdom (Incoterms ® 2010) and exclusive of Value Added Tax unless explicitly stated otherwise in the Quotation.
The Parties hereby acknowledge and agree that the Company has the right to adjust prices stated in the Quotation and/or in the Contract should factors beyond the control of the Company affect the price by 5% or more.
In case the Quotation contains an option for delivery of additional goods and/or services, the Customer’s Purchase Order shall be deemed to cover also such option. The Customer shall have the right to withdraw its right to the option. Provided such withdrawal would be affected at least two months prior to the estimated Delivery Date for such option, the withdrawal can be made without any penalty on the part of the Customer.
6. Terms of Payment
(a) Unless otherwise agreed, standard Payment Terms are 60% of the total contract value on HTC acceptance of the Customer Purchase Order, and 40% upon delivery to the Customer.
(b) All payments due from the Customer shall be made without deduction of any fees, set-offs, taxes, charges and other duties (including any withholding or income taxes).
(c) Any payment made by the Customer in advance shall be considered a deposit for any pending or future Purchase Orders. A re-payment of a deposit or its part may be claimed by the Customer only in case of termination of the Contract due to reasons attributable solely to the Company; in all other cases the deposit is non-refundable and shall be used as a contractual penalty paid by the Customer for non-performance of the Contract. The right of the Company to claim any damages or actual costs incurred in connection with the Contract shall not be affected or limited in any way by the payment of the contractual penalty.
(d) The Company shall be entitled to claim statutory interest on all sums owed by the Customer to the Company from the due date of payment until the date of actual payment thereof whether before a judgement or after (“qualifying debt”) in accordance with the Act No. 351/2013 Coll.
(e) Time for payment shall be of the essence. In the event of non-payment within a 10 day period, the Company shall have the right, in addition to any other remedies available to it, to give to the Customer a seven (7) days’ notice of its intention to cancel or to suspend production or deliveries under this Contract or any other Contracts made with the Customer unless due payment is made within the notice period.
Where applicable, the Company’s standard retail trade packaging is included in the price. Any special packing requirements may incur an additional charge.
(a) Time for delivery shall not be of the essence.
(b) The Company will endeavor to meet any Delivery Dates which are to be understood only as estimated dates for delivery.
(c) Unless otherwise expressly stated elsewhere in the Contract, the Company will not be liable under any circumstances for any losses suffered by the Customer due to the failure to meet a specified Delivery Date.
(d) The Company shall notify the Customer when the Goods are available for collection. If the Customer fails to take delivery of the Goods within five (5) working days of notification, then the Company reserves the right to hold the Goods, at the risk of the Customer, for a period of time determined by the Company, and may charge any additional holding costs. Thereafter the Company may deliver the Goods to the Customer at the Customer’s expense.
(a) Title and property (“ownership”) in the Goods shall vest exclusively in the Company and ownership shall only pass to the Customer upon receipt by the Company of full payment of the delivered Goods.
(b) Neither the Customer nor any other person shall have a lien or charge over the Goods, for whatever reason, prior to full payment being received by the Company.
Risk shall pass to the Customer in accordance with the Incoterms stated in clause 5.
The Customer shall have ten (10) working days from the date the Goods are made available to the Customer to raise written justified objections to the Goods or their characteristics in conflict with the Contract. Unless such justified objections are delivered to the Company within the stated period of time, the Goods shall be deemed as accepted.
All warranty claims shall in the first instance be notified to the Company as soon as possible via email or phone.
a) Hardware Products
The Company warrants its hardware against defect in materials or workmanship for a period of 12 calendar months from acceptance in accordance with clause 11. In the event of a warranty failure, the Company reserves the right to decide whether to repair or replace the defective item.
b) Software and Firmware Products
The Company warrants for a period of 12 calendar months from acceptance in accordance with clause 11 that its software and firmware designated by it for use with its Goods will substantially conform to its specification when properly installed and used on the Goods. The Customer acknowledges and accepts that the Company does not warrant that the operation of its software or firmware will be uninterrupted or error-free.
c) Radio frequency interference
The Company warrants the accuracy of the measurements it makes on the Customer’s particular equipment it tests. The Company does not warrant that those measurements will conform to measurements made on equipment of the Customer not tested by the Company.
(i) The Company warrants the repair of a hardware item (or at its discretion replacement items) undertaken during the warranty period at 12(a) against defects in materials or workmanship for the remainder of the warranty period or 6 calendar months from the return delivery to the Customer of the repaired item, whichever is the greater.
(ii) The Company warrants the repair of a hardware item (or at its discretion replacement items) undertaken after the expiry of the warranty period at 12(a) against defect in materials or workmanship for a period of 3 calendar months from the date of return delivery to the Customer.
The Company warrants that the Services shall be performed by suitably qualified and trained staff utilizing all reasonable skill and care in accordance with best industry practice.
f) Warranty Limitation
(i) The Customer acknowledges and accepts that the warranties stated herein, and associated remedies are its sole and entire warranties and remedies in connection with the supply of Goods and performance of any work carried out under the Contract by the Company. All other representations and warranties that may otherwise be implied (by statute or otherwise) in relation to such supply are excluded to the fullest extent permitted by law.
(ii) The Company shall not be liable for any defects caused by fair wear and tear, use of equipment other than in accordance with the Company’s oral or written instructions, equipment being used outside its specifications, equipment used other than for its intended purpose, failing to correctly configure, install, store and/or maintain the equipment in accordance with the Company’s guidelines.
13. Limitation and Exclusion of Liability
In no event shall the Company be liable for indirect, special, consequential, multiple or punitive damages, or any damage deemed to be of an indirect or consequential nature (including, without limitation, loss of anticipated savings, profit, revenue, goodwill, production, business interruption, use or contracts, or losses consequent upon loss or corruption of data nor the cost of reconstituting data) arising out of or related to its performance under the Contract, whether based upon breach of contract, warranty, negligence and whether grounded in tort, contract, civil law or other theories of liability, including strict liability. To the extent that this limitation of liability conflicts with any other provision(s) of this Contract, said provision(s) shall be regarded as amended to whatever extent required to make such provision(s) consistent with this provision. The Customer hereby acknowledges and agrees that in no event shall the total cumulative liability of the Company or its subcontractors or suppliers of any tier with respect to direct damages of the Customer whether in contract, warranty, tort (including negligence or strict liability) or otherwise for the performance or breach of the Contract or anything done in connection therewith exceed 100% of the Contract value. Notwithstanding anything else in the Contract to the contrary, the stated monetary limitation hereinabove is the maximum liability the Company has to the Customer.
14. Intellectual Property Rights
The Intellectual Property relating to the Goods, the Services or software or disclosed to the Customer in connection with any order or proposal, are the exclusive property of the Company (“Owned Assets”). The Customer shall not:
a) Decompile, reverse engineer, disassemble, trace or otherwise analyze the Goods or software, their content, operation, or functionality;
b) Modify, adapt, or translate the Goods or software, nor create derivative works based on the Goods or software; or
c) Disclose or use in any way any information regarding the Owned Assets to any other person(s) or company(ies) without the Company’s prior written approval.
Unless otherwise specified in writing, all software and printed documentation of the Company may not be copied except for archive purposes or to replace a defective copy or for program error verification by the Customer and the Customer acknowledges the copyright therein belongs to the Company.
Except with the consent in writing of the Company, the Customer shall not, for the term of the Contract and for five (5) years after its termination, disclose any details of the Contract or the Goods, software and / or Services for any purpose (including publicity or in connection with exhibitions) to any person other than a person employed by the Customer that has to be informed thereof for the purpose of carrying out the Contract. Such disclosure shall be made in confidence and shall extend only so far as necessary for the purposes of the Contract.
Upon expiry or earlier termination of the Contract, the Customer shall return or destroy (with destruction certification provided) any and all of the Company’s proprietary information to the Company.
a) The Customer shall maintain an adequate insurance policy to cover the risk of suffering loss and/or damage as a result of the Customer’s negligence, breach of contract or other default.
b) The Customer undertakes that such insurance policy will provide for a waiver of all rights or subrogation against the Company, its servants or agents.
17. Representations, Warranties, Variation of Contract
No representation, warranty, addition to or variation of the Conditions or the Contract shall be binding on the Company unless the same is in writing and signed by one of its directors or personnel holding delegated authority.
18. Force Majeure
The Company shall be under no liability to the Customer in the event that its performance of the Contract is affected wholly or partially by any restriction imposed by a government or other competent authority, strike, lock-outs, a failure in the Company’s anticipated supplies or raw materials or any other cause whatsoever which is beyond the Company’s control. The Customer acknowledges that the delivery of Goods and/or Services under the Contract may be subject to a government approval / export license to which there is no entitlement, and thus the Company bears no liability in case such required governmental approval/export license is not issued and delivery cannot be affected. The Customer undertakes to provide the Company all assistance and cooperation required for the application for such governmental approval/export license and for the ensuing proceedings.
19. Specifications and Information
a) Unless expressly agreed otherwise in writing by the Company, all drawings, designs, specifications and particulars of weight and dimensions submitted by the Company are approximate only and the Company shall have no liability in respect of any deviation therefrom. The Company accepts no responsibility for any errors or other defects in any drawings, designs or specifications provided by the Customer, and the Company shall be indemnified by the Customer against any and all liabilities and expenses incurred by the Company arising therefrom.
b) All drawings, designs, specifications and particulars submitted to the Customer shall remain the property of the Company and shall be immediately returned to the Company at its request.
c) All drawings, designs, specifications and information submitted by the Company are confidential and shall not be disclosed to any third party without the Company’s prior written consent.
d) Unless expressly agreed otherwise in writing by the Company, any goods or services sold is deemed as suitable for its intended use at time of sale. Any changes to the operating environment, including changes to a network infrastructure, usage of different encryption algorithms, usage of different parts of standardized specifications etc., made after the time of sale, exclude the liability of the Company for the suitability and/or functioning of the goods or services.
Subject to clause 13, the Company agrees to indemnify and hold the Customer harmless from any loss, cost or expense claimed by third parties for property damage and bodily injury, including death, caused solely by the negligence or willful misconduct of the Company, its agents, employees or the Company’s affiliates in connection with the Company’s work under this Contract.
The Customer agrees to indemnify and hold the Company harmless from any loss, cost or expense claimed by third parties for property damage and bodily injury, including death, caused solely by the negligence or willful misconduct of the Customer, its agents or employees in connection with the Contract.
If the negligence or willful misconduct of both the Company and the Customer (or a person identified above for whom both of them are liable) is the sole cause of such damage or injury, the loss, cost or expenses shall be shared between the Company and the Customer in proportion to their relative degrees of negligence or willful misconduct and the right of indemnity shall apply for such proportion.
Any notice given under this Contract shall be in writing and sent by first class pre-paid post to the Customer’s or Company’s (as the case may be) registered office and shall be deemed to have been received 48 hours after the date of posting thereof.
No failure by the Company to exercise or delay in exercising any of its rights or remedies under this Contract shall operate as a waiver of such rights or remedies or shall prevent the Company from subsequently enforcing any rights or remedies.
Either party may terminate all or a portion of the Contract for cause which is defined as a substantial breach of material obligations (obligations of essence) by the other party provided that the party in breach does not remedy the alleged breach within fifteen (15) working days from a prior written notice..
In addition to the above, either party may terminate the Contract if the other party becomes insolvent, makes an assignment for the benefit of creditors, is adjudged bankrupt or if a receiver is appointed for the whole or any part of its assets.
The Company is furthermore entitled to terminate the Contract with immediate effect upon delivery of a termination letter to the Customer in case any representative of the Company, its employee or any other person acting on behalf of the Company (“personnel”) would be detained or arrested for any reason in the country of the Customer’s or End-User location or in any other country in which such personnel would be at the request of the Customer or the End-User.
In case of early termination of a Contract, the Company shall be entitled to payment for all reasonable costs incurred and Goods already delivered under the Contract, and furthermore it is entitled to keep any deposit paid by the Customer in advance.
24. Governing Law
The Contract shall be governed by the laws of the England. The provisions on conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. A person who is not a party to the Contract may not enforce any of its terms.
25. Dispute resolution
Any dispute arising in connection with the Contract and/or in connection with shall be subject to the local jurisdiction of the English court competent based on the registered office of the Company.
26. Closing provisions
a) All the provisions of the Contract shall be severable. In the event that any one or more of the provisions contained in the Contract shall be invalid, illegal or unenforceable in any respect under any relevant law, the validity, legality and enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby. In such case the Parties undertake to conclude within seven working days from the notice of one of the Parties an amendment to this Contract that would replace the separable provision of the Contract which is invalid or unenforceable and that would be valid and enforceable and would correspond to the economic purpose of the provision being replaced.
b) Breach by the Customer of any of the obligations set out herein shall entitle the Company to treat the Contract as repudiated.
c) The Parties expressly acknowledge that they are entrepreneurs and conclude this Contract in the course of their business. According to § 1797 of the CC the provisions of § 1793 or 1796 CC shall not apply.
d) This Contract regulates the entire subject matter and all the necessities which the Parties had and intended to negotiate in the Contract, and which they consider important for the binding nature of this Contract, and it replaces all previous agreements between the Parties concerning the same subject matter. No statements of the Parties in the negotiations or after the conclusion of this Contract shall be interpreted as contrary to the express provisions of this Contract and shall not create any obligation by either Party unless expressly agreed otherwise in writing.
e) This Contract is not a dependent contract within the meaning of § 1727 CC. For the avoidance of any doubt, no obligation under this Contract is a fixed commitment under § 1980 CC.
f) The rights arising from this Contract or its breach shall lapse in a period of 4 (four) years from the day when the right could be exercised for the first time.
g) Should the Purchase Order of the Customer contain additional or different terms compared to the Quotation and/or the Conditions, such additional or different terms shall not apply.