Terms and Conditions
1. Interpretation
1.1 In these Conditions unless the context otherwise permits: -
"Authorised Representative" means a person whose job title is that of Director
or Managing Director or a person who holds the office of director.
"Consumer" shall mean any natural person who in the contract with the Customer
is acting for purposes that are not related to his trade, business or
profession.
"Customer" means the person, firm, company, entity or organisation with whom
FCBS contracts for the sale of Products and/or supply of Services.
"The Conditions/ these Conditions" means the standard terms and conditions of
sale set out in this document or such replacement standard terms and conditions
notified to Customer as are in force at the date of the Contract and which at
that date appear on FCBS's web site at www.fcbs-store.co.uk.
"The Contract" means any contract for the purchase and sale or other supply of
Products and/or the supply of Services by FCBS to a Customer.
"Electronic Means" means any electronic means including without limit on the
Web, by EDI or XML, or Inside Line®.
"FCBS" means First Class Business Solutions Ltd (registered in England number
2979465) with its registered office at 43-45 Park Farm Industrial Estate, Ermine
Street, Buntingford, Hertfordshire SG9 9AZ, England.
"Products" means any Products (including, for the avoidance of doubt software
and instalments of the Products or any parts of or for them) sold by FCBS to a
Customer.
"Services" means any services supplied by FCBS to the Customer.
"Special Order Products" shall mean Products that are classified in FCBS's
current comprehensive product listing as special order products or have been
ordered specifically by Customer or configured to Customer's specifications.
1.2 The headings in these Conditions are for convenience only and shall
not affect their interpretation.
1.3 The Conditions shall apply to sales of all Products including Special
Order Products ordered for shipment to or within the UK mainland. FCBS reserves
the right to apply supplemental or other terms for Products to be shipped by
FCBS outside the UK mainland.
1.4. Without prejudice to the application of these Conditions additional
and more detailed terms may apply for certain Products and suppliers including
specific terms applicable to special prices offered by suppliers through FCBS
("Special Terms") and additional terms may apply with respect to FCBS’s delivery
and other aspects of its business. Any additional terms and the updated Special
Terms will be made available on FCBS's web site www.fcbs-store.co.uk. It is the
Customer's responsibility to be aware of and adhere to the additional and
Special Terms as current from time to time, and by ordering Products from FCBS
the Customer agrees to be bound by additional and Special Terms.
2. Basis of the Sale
2.1 All Contracts between FCBS and a Customer shall be governed by these
Conditions (and, where applicable, any other terms and conditions pursuant to
Clause 1.3 and/or Clause 1.4) to the exclusion of any other terms and conditions
not accepted in writing by an Authorised Representative of FCBS, including
without limit any terms on or referred to in any Customer purchase order. In the
case of orders placed by Electronic Means which refer to any terms and
conditions of the Customer FCBS's automatic taking on to its system of such
order shall amount to a rejection of the Customer's terms and conditions and an
offer to supply the Products ordered on the basis of these Conditions. No
variation to these Conditions shall be binding unless agreed by letter signed by
an Authorised Representative of FCBS. It is the Customer's responsibility to be
aware of the Conditions as current from time to time but FCBS will use best
efforts to notify Customer of any material changes to the Conditions before they
become applicable. In addition to any acceptance of these Conditions by signing
FCBS's account application form, the Customer's acceptance of these Conditions
shall also be made (in respect of the first Contract and all subsequent
Contracts) either by (1) Customer providing a purchase order to FCBS or (2)
Customer accepting Products or Services from FCBS, whichever occurs first.
2.2 No employee or agent of FCBS other than an Authorised Representative
has any authority to make any representation at all concerning Products or
Services and an Authorised Representative has no authority to make such
representation other than by letter (an "authorised representation") and
accordingly Customer agrees that in entering into any Contract it does not rely
on any unauthorised representation and Customer agrees it shall have no remedy
in respect of any unauthorised representation (unless made fraudulently).
3. Customer Identification
3.1 In placing an order including by Electronic Means Customer may
utilise one or a combination of account name, account number and other forms of
identification including password or other code issued to Customer (together and
individually "Customer's Identification" or "Customer Identification").
3.2 It is the Customer's responsibility to keep the Customer's
Identification confidential. Customer has the sole responsibility for its
Customer Identification. Customer shall immediately inform FCBS in case of loss
of password or in case of any abuse or attempted abuse of Customer password or
other Customer Identification. Customer agrees that Customer is entirely
responsible for use of Customer's Identification and that it is Customer's
responsibility to have in place security measures and procedures to ensure use
of its Customer Identification only by authorised personnel for authorised
purposes.
3.3 Customer agrees that FCBS is entitled to rely absolutely on any
orders placed on FCBS which have utilised Customer's Identification and to
deliver as directed by such orders and to invoice and be paid in respect of such
orders.
3.4 Customer agrees that any order placed on FCBS including by Electronic
Means mentioning or utilising Customer's Identification is a valid and binding
purchase order.
3.5 Customer acknowledges that FCBS cannot guarantee the security of the
Internet and the possibility of interception or corruption of data transmitted
from Customer to FCBS using correct Customer Identification, and that FCBS is
nonetheless entitled to rely on data transmitted in the form it is received at
FCBS.
4. Ingram Information
4.1 All Product pricing, description, availability and related
information ("Information") provided by FCBS, in any form, is the property of
FCBS or its suppliers. FCBS hereby grants Customer a limited, non-exclusive,
non-transferable license to use the Information for its internal use only for
the purpose of Customer's purchases and sales of Products sold by FCBS to it.
FCBS shall be entitled to stop the provision of Information at any time without
notice. Customer agrees to hold in confidence and not to directly or indirectly
use, reveal, report, publish, disclose or transfer to any other person or entity
any of the Information or utilise the Information for any purpose except as
permitted herein. FCBS makes no warranty, either express or implied on the
Information or its accuracy. All Information is provided to Customer "as is." If
FCBS provides Information to Customer by Electronic Means, Customer agrees to
update such Information regularly to ensure its accuracy. Specifically but
without limitation Customer is not entitled to utilise Information for any
purpose other than in the normal course of business of a reseller and is not
entitled to use, reproduce or display the Information in any way, which in
FCBS's opinion; (1) would enable it to be identified as information obtained
from FCBS (2) would enable comparison of the Information with other suppliers'
information relating to Products or (3) could be damaging to FCBS's business
interests.
4.2 FCBS agrees to hold in confidence and not to directly or indirectly
use, reveal, report, publish, disclose or transfer to any other person or entity
any Customer sensitive information or utilise such information for any purpose
if Customer has notified FCBS in writing that such information is confidential.
Customer agrees that FCBS may disclose to its suppliers certain details
(including personal data) about the Customer and FCBS’s sales of the respective
suppliers’ Products to the Customer.
5. Orders and Specifications
5.1 The Customer shall be responsible to FCBS for ensuring the accuracy
of the terms of any purchase order, and shall be sole responsible for its
selection of Products on any purchase order and the fitness of the Products for
any particular purpose. FCBS disclaims any liability for any errors in the
Customer’s purchase order.
5.2 FCBS reserves the right to make any changes to the Contract due to
changes in the specification of the Products made by its suppliers or changes
that are required to conform with any applicable safety or other statutory
requirements. These changes will be duly notified to the Customer. The Customer
cannot cancel or reschedule the Contract provided the changes do not alter the
material terms of the Contract. For other types of changes, the possibility of
cancellation will be subject to FCBS's discretion and conditions.
5.3 FCBS is under no obligation to accept the withdrawal of an order or
the cancellation of a Contract which has been accepted by FCBS. If FCBS agrees
to accept the Customer's withdrawal of any order or the cancellation of a
Contract such agreement will only be effected by means of letter, fax or email
signed or sent by an Authorised Representative of FCBS.
5.4 Notwithstanding any other terms of these Conditions it is agreed that
the provision or display of Product pricing and other Information (as defined in
Clause 4.1) by FCBS to Customer does not amount to an offer by FCBS to sell such
Product at that price or on any other terms. Supply of such Information is only
an invitation to treat. An order by the Customer for Product or Services shall
be the offer.
5.5 Notwithstanding any acceptance by FCBS of any offer to purchase
Products, if there has been a material or obvious pricing error by FCBS, FCBS
shall be entitled within 30 days of its acceptance of such offer to either
invoice the Customer for the Customer's true list price (not exceeding the
prevailing market price at wholesale level) of the Product at the date of order
or, if the Customer shall prefer, collect the Product at FCBS's expense and
credit the Customer for any charges (e.g. price and freight) invoiced by FCBS.
5.6 Orders for direct shipment to Customer's customers or Special Order
Products may require the Customer’s acceptance of additional terms including
prepayment of the order and will be subject to additional fees.
5.7 FCBS will set minimum order levels and charge additional fees for any
order below such levels. Current minimum order levels can be found on FCBS's web
site www.fcbs-store.co.uk.
6. Price of the Products
6.1 Subject to the provisions of Clause 5.5 and Clause 6.2:-
6.1.1 Prices for Products in FCBS's stock ready to be shipped will be
established at the time the order is accepted by FCBS;
6.1.2 If the Customer places an order for Products not in stock at the
time of order (a "Backorder") or the Customer places an order for scheduled
delivery, such orders shall be irrevocable and the price for such Products shall
be the price established at the time the Backorder or scheduled delivery is
accepted by FCBS.
6.2 Notwithstanding any of the foregoing FCBS reserves the right to
increase its prices after acceptance of a Backorder or scheduled delivery due to
an increase in its supplier's price to FCBS or an increase in direct costs to
which FCBS becomes subject (including without limit costs resulting from
currency fluctuation) but FCBS shall only increase its price by such level as is
necessary to reflect such increases.
6.3 All prices quoted by FCBS exclude the cost of transport from FCBS's
warehouse to the Customer's receiving point, as well as configuration,
fulfilment and other services provided by FCBS.
6.4 All prices and charges are exclusive of any applicable Value Added
Tax, which the Customer will be additionally liable to pay to FCBS. Unless
otherwise stated prices exclude any copyright levies, waste and environmental
fees, and similar charges that FCBS by law or statute may or shall charge or
collect upon resale.
6.5 If Customer is offered special pricing for certain orders and such
pricing is made available to FCBS from its suppliers ("Special Bids"), the
Customer shall adhere to the applicable Special Terms and other terms and
conditions of such Special Bids and agrees to indemnify FCBS for any claims made
against FCBS by the suppliers for Customer's non-compliance with the supplier's
terms and conditions. Customer agrees to pay any service fees charged for FCBS's
pass-through of Special Bids and other supplier driven benefits the Customer may
receive, including any marketing funding, price protection and individual
rebates, and agrees that pass-through and payment of such benefits will be
subject to FCBS having received the benefits from its supplier. The Special
Terms may oblige the Customer to comply with certain requirements including but
not limited to (i) the sale of the Products only to specifically named
end-users; (ii) the disclosure of end-user information to FCBS and its suppliers
for the purpose of end-user verification; and (iii) the submission of copies of
end-user invoices, end-user purchase orders or end-user shipping documents to
FCBS and its suppliers. Subject to the Special Terms applicable for the
individual suppliers and Products, non-compliance with the Special Terms may
entitle FCBS and/or its suppliers to reclaim and invoice the Customer in full
for all discounts, rebates and other special price conditions granted to the
Customer under the special price.
7. Terms of Payment
7.1 Unless FCBS shall have previously agreed in writing with the Customer
that the Products shall be supplied on credit, payment for the Products shall be
made in full by the Customer with the Customer's order or on delivery or
collection of the Products as determined by FCBS. If payment is made by credit
or debit card the Customer agrees to pay all fees and service charges incurred
by FCBS for the handling of such transaction including fees charged by the card
company to FCBS.
7.2 Where FCBS has agreed to supply the Products on credit Customer shall
pay the price of the Products within 30 days of the date of FCBS's invoice
notwithstanding that title to the Products has not passed to the Customer.
Customer may take advantage of an early payment discount subject to meeting the
conditions detailed on FCBS's web-site
www.fcbs-store.co.uk. Customer shall not deduct or set off any other
amount against the invoice as compensation for any payment made prior to the due
date. Invoices will be dated the day of dispatch of the Products. FCBS shall be
entitled at its absolute discretion to alter payment terms (other than on
concluded Contracts) and withdraw or alter any credit limit granted at any time
with notice. If Customer exceeds its credit limit or fails to qualify for
continued credit terms, FCBS may, at its sole discretion, delay subsequent
shipments or require prepayment until FCBS determines that Customer is once
again qualified to receive credit terms. Customer shall not set off or withhold
any amount due to FCBS against its receivables without FCBS's prior written
approval, and shall in the event of a bona fide dispute, pay any undisputed part
of the invoice.
7.3 The time of payment shall be of the essence. If the Customer fails to
make a payment on the due date then without prejudice to any other right or
remedy available to it FCBS shall be entitled to: -
7.3.1 cancel the Contract or suspend any further deliveries or suspend
any Services to the Customer; FCBS may at its discretion grant Customer a
reasonable cure period before cancelling the Contract due to non-payment;
7.3.2 appropriate any payment made by the Customer to such of the
Products as FCBS may think fit (notwithstanding any purported appropriation by
the Customer);
7.3.3 charge the Customer interest (both before and after judgement) on
the amount unpaid at the rate of 5% per annum above Barclays Bank plc base rate
from time to time until payment in full is made such interest being calculated
on a daily basis.
7.4 Customer shall provide FCBS's Credit Department with copies of its
annual financial statements and its quarterly statements within sixty (60) days
of the close of the fiscal period to which they relate. Customer shall inform
FCBS promptly if there is a change of ownership or control of Customer or its
direct or indirect parent company (excluding changes of ownership of the shares
of a publicly quoted company which do not result in a change in control of the
company's board of directors or other governing board), a management buy-out, or
all or a substantial part of the Customer's assets are sold or otherwise
transferred to any non-affiliated company or member of the Customer's group of
companies.
7.5 In the event Customer intends to sell, assign, factor or otherwise
transfer any book debt owed to Customer or to enter into any form of invoice
discounting arrangement Customer agrees to inform FCBS in writing prior to
entering into any such arrangements.
7.6 It is FCBS's policy not to accept cash as a method of payment for
Products or Services.
7.7 If FCBS issues a credit note and the Customer does not utilise the
credit note within a period of 12 months from the date of its issue FCBS shall
have the right to cancel the credit note and the Customer shall not be entitled
to a replacement or any payment in respect of the same.
7.8 Any credit balance shown on a Customer's statement of account issued
by FCBS which remains on the statement for a period of 12 months will be
forfeited by the Customer who shall no longer have any rights to the same.
7.9 FCBS reserves the right to issue and send all invoices to the
Customer in an electronic format, and the Customer accepts to receive all
invoices electronically including receipt of invoices by e-mail.
8. Delivery
8.1 Unless the Customer shall have notified FCBS in writing within 5
working days of the date of FCBS's invoice that the Products have not been
received or that the Products were damaged then delivery shall be deemed to have
taken place in accordance with the Contract and the Customer shall not be
entitled to raise any claim of short or mis-shipment or damage to the Products.
8.2 The Customer shall upon receipt of the Products sign the delivery
note (proof of delivery) and be responsible for complying with the applicable
shipping requirements of FCBS and its carriers details of which are made
available at FCBS’s web-site (www.fcbs-store.co.uk). The Customer’s sign-off on
FCBS’s delivery shall be at carton level. FCBS shall be entitled to assume that
any person who both reasonably appears and claims to have authority to accept
delivery who signs a note in respect of the Products on behalf of the Customer
or the Customer's customer (if FCBS has agreed to deliver direct) does in fact
have the authority.
8.3 Any dates quoted or scheduled for the delivery of Products are
approximate only and FCBS shall not be liable for any delay in delivery of the
Products howsoever caused.
8.4 Partial delivery is allowed unless otherwise mutually agreed by both
parties. Failure by FCBS to deliver the rest of the Products shall not entitle
the Customer to treat the order as a whole as repudiated.
8.5 For the purpose of these Conditions where FCBS has agreed to ship
Products direct to the Customer's customer any such shipment shall be deemed to
be delivery to the Customer and any refusal by the Customer's customer to accept
delivery shall be deemed to be a refusal by the Customer.
8.6 The Customer shall bear all costs associated with the unjustified
refusal of Products. If the refusal is made on the grounds that the order was
wrongly placed (i.e. wrong product, wrong pricing, etc.) and the refusal is
accepted by FCBS, FCBS reserves its right to charge accordingly additional fees
for return transportation and administrative expenses related thereto, and
original carriage costs will not be reimbursed.
9. Risk and Title
9.1 Risk of damage to or loss of Products shall pass to the Customer at
the time of delivery or if the Customer unjustifiably fails to take delivery of
Products the time when FCBS has tendered delivery of the Products.
9.2 Notwithstanding delivery and the passing of risk of the Products or
any other provisions of these Conditions, title to the Products shall not pass
to the Customer until FCBS has received in cleared funds payment in full of: -
9.2.1 the Products; and
9.2.2 all other sums which are or which become due to FCBS from the
Customer on any account.
9.3 Until such time as title to the Products passes to the Customer the
Customer shall: -
9.3.1 hold the Products as FCBS's fiduciary agent; and
9.3.2 keep the Products separate to those of the Customer and third
parties; and
9.3.3 keep the Products properly stored protected and insured, and
identified as FCBS's property; and
9.3.4 accept that Products may be labelled as being FCBS's property until
FCBS is paid.
9.4 Until such time as the title in the Products passes to the Customer
(and provided the Products are still in existence and have not been resold) FCBS
shall be entitled at any time to require the Customer to deliver up the Products
to FCBS and if the Customer fails to do so forthwith to enter upon any premises
of the Customer or any third party where the Products are stored and repossess
the Products.
9.5 The Customer's right to possession of the Products shall terminate
immediately if: -
9.5.1 the Customer has a bankruptcy order made against him or makes an
arrangement or composition with his creditors, or otherwise takes the benefit of
any Act 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 a resolution is
passed or a petition presented to any court for the winding up of the Customer
or for the granting of an administration order in respect of the Customer, or
any proceedings are commenced relating to the insolvency or possible insolvency
of the Customer; or
9.5.2 the Customer 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/perform any of his/its obligations under the Contract or any other
contract between FCBS and the Customer or is unable to pay its debts within the
meaning of Section 123 of the Insolvency Act 1986 or the Customer ceases to
trade; or
9.5.3 the Customer encumbers or in any way charges any of the Products.
9.6 Customer is entitled to resell the Products in the ordinary course of
business. Customer is not able or entitled to offer the Products as collateral
or otherwise grant a charge in respect of the Products until title has passed to
the Customer in accordance with these Conditions. Customer shall inform its
customers that title to the Products is retained by FCBS until Customer has paid
FCBS, and shall ensure that its customer has agreed with the Customer that any
unpaid Products shall be returned to FCBS in the event of Customer's failure to
pay FCBS's invoices when they fall due. The Customer shall upon FCBS's request
provide FCBS with all details and information necessary for FCBS to collect the
Products.
10. Warranties and Liability
10.1 FCBS does not manufacture the Products (or where the Products
comprise computer software does not publish or license the software) and subject
to the conditions set out below in this Clause 10 FCBS only sells the Products
with the benefit of the manufacturer's or publisher's or licensor's
(“publisher's”) warranty (as the case may be).
10.2
10.2.1 FCBS will accept liability for defective Products only to the
extent that FCBS is entitled to make a claim under the manufacturer's or
publisher's, Dead on Arrival, warranty or other defective goods terms and
actually obtains from the manufacturer or publisher a refund credit repair or
replacement in respect of the defective Products. Processing of these defective
Products shall be made according to the manufacturer's procedure and the
instructions set out in Clause 10.4 below. FCBS cannot and shall have no
obligation to accept a return of and/or grant a credit for Product not compliant
with the manufacturer's procedures.
10.2.2 FCBS shall be under no liability in respect of any defect arising
from fair wear and tear wilful damage negligence abnormal working conditions
failure to follow FCBS's or the manufacturer's or publisher's instructions
(whether oral or in writing) misuse or alteration or repair of the Products
without FCBS's approval.
10.2.3 FCBS shall be under no liability under the above warranty if the
total price of the Products has not been paid.
10.3 All warranties, conditions or other terms implied by common law or
statute, or otherwise in connection with the sale or supply of goods or goods or
services (save, in the case of goods, as to title) are excluded to the fullest
extent permitted by law.
10.4 Any claim by the Customer which is based on a defect in the quality
or condition of the Products shall be notified to FCBS's Customer Services
Department. Upon notification of any such claim by the Customer FCBS shall
either notify the Customer whether the policy of the manufacturer of the
Products is to deal with the Customer direct (in which case the Customer shall
deal with the manufacturer direct provided FCBS gives sufficient details to
enable the Customer so to do) or shall provide the Customer with an RMA number
(in which case the Customer shall return the Products to FCBS in their original
Unmarked packaging together with details of the RMA number and the
Customer's name and address). If FCBS issues an RMA number to the Customer FCBS
shall not send any replacement Products to the Customer until after the original
Product has been returned to FCBS. This Clause 10.4 shall only apply to Products
the Customer is entitled to return to FCBS as provided in these Conditions.
10.5 FCBS shall not be liable to the Customer for any economic or
financial loss or damage (including without limit any loss of profits, loss of
revenue, liabilities incurred by the Customer to third parties relating to
Products delivered or Services rendered by FCBS, or additional expenses incurred
or the cost of time spent) or any consequential, indirect, or special loss or
damage costs expenses or other claims for consequential compensation whatsoever
(including without limit loss of or damage to data or loss of goodwill) incurred
or suffered by the Customer and in every case howsoever caused or arising (and
whether caused by the negligence of FCBS its employees or agents or otherwise).
10.6 FCBS's liability for direct loss or damage arising from damage to
tangible property for which FCBS is liable shall be limited to the VAT exclusive
price of the relevant Product or Service. In no event shall FCBS’s liability
exceed the maximum amount of FCBS’s insurance cover.
10.7 Nothing in these Conditions shall in any way exclude or limit any
liability FCBS may have for death or personal injury caused by its negligence.
10.8 FCBS shall not be liable to the Customer or be deemed to be in
breach of any Contract by reason of any delay in performing or any failure to
perform any of FCBS's obligations in relation to the Products or Services if the
delay or failure was due to any cause beyond FCBS's reasonable control. Without
prejudice to the generality of the foregoing the following shall be regarded as
causes beyond FCBS's reasonable control: -
10.8.1 Act of God explosion flood tempest fire or accident;
10.8.2 act of terrorism war or threat of war sabotage insurrection civil
disturbance or requisition;
10.8.3 acts restrictions regulations byelaws prohibitions or measures of
any kind on the part of any governmental or parliamentary or local authority;
10.8.4 import or export regulations or embargoes;
10.8.5 strikes lockouts or other industrial actions or trade disputes
(whether involving employees of FCBS or a third party);
10.8.6 difficulties of FCBS's supplier in obtaining raw materials labour
fuel parts or machinery.
10.9 If Customer is selling Products or Services purchased from FCBS to a
Consumer the Customer shall ensure the Consumer is given sufficient and
appropriate information and descriptions as to the Product's or Services'
fitness for the purpose for which the Products or Services are normally used and
any particular purpose the Consumer has required or agreed with the Customer.
Customer shall not remove or replace any labelling, user manuals, components or
other material from the Product as supplied by the manufacturer or FCBS, and
shall not in its advertising, marketing or labelling provide any public
statements on the specific characteristics of the Products or Services on behalf
of FCBS, the manufacturer or their representatives.
10.10 Customer accepts liability for the Products' conformity with the
Customer's Consumer contract ('conformity' as defined by the EU Directive
1999/44/CE of May 25, 1999 and legislation implementing the Directive), and
Customer shall not offer any warranties or representations to the Consumer as to
the quality, fitness for purpose of the Products without the manufacturers'
express consent. Customer agrees to hold harmless and indemnify FCBS and the
manufacturers against any loss, costs, and damages caused by the Customer's acts
or omissions, and non-compliance with the obligations set forth in Clause 10.9,
Clause 10.10 and Clause 10.11. If Customer is held liable to the Consumer caused
by a Product's lack of conformity resulting from an act or omission by the
manufacturer or FCBS, or any other intermediary, Customer may by law or statute
be entitled to pursue remedies against FCBS, the manufacturer or any other
person liable in the contractual chain. Provided Customer is legally entitled to
pursue such remedies and FCBS is held liable by a competent court of law, FCBS's
liability to Customer shall be limited to an amount corresponding to the
Customer's original purchase price of the Product or Service giving rise to the
claim by the Consumer.
10.11 Should the Product warranties offered by the manufacturers or FCBS
under these Conditions be restricted compared to the guarantees the Consumer is
entitled to under law, the Customer agrees to take sole responsibility towards
the Consumer for the excess liability and waives any claim it may have against
FCBS in respect of such excess.
10.12 The Products are subject to the intellectual property rights of
FCBS's suppliers (i.e. the Product manufacturers). Customer is not authorised to
alter, cover, or remove any reference to such intellectual property rights on
the Products, and shall adhere to any guidelines and restrictions provided by
FCBS's suppliers if the Customer is granted a right to use such rights in the
marketing and resale of Products. FCBS shall have no duty to defend, indemnify
or hold Customer harmless from and against any or all claims brought against
Customer or damages and costs incurred by Customer arising from the infringement
of a third party's intellectual property rights, except to the extent FCBS's
supplier is offering such defence or indemnification to FCBS on a pass through
basis. Upon threat of claim or claim of infringement, FCBS may, at its option (i)
procure the right to continue using any part of Product, (ii) replace the
infringing Product with a non-infringing Product of similar performance, or
(iii) refund to the Customer the purchase price paid by the Customer for the
infringing Product. Notwithstanding any other terms or conditions to the
contrary FCBS's liability for infringement of intellectual property rights under
these Conditions shall not exceed the Customer's purchase price for the
infringing Products.
11. Returns and Repairs
11.1 Except for Special Order Products, which are expressly excluded from
the terms of this Clause 11 and cannot be returned under any circumstances, if
FCBS agrees to accept the return of any Products (other than for the purpose set
out in Clause 10 above) or agrees to carry out repairs to other products which
have not been purchased from FCBS or agrees to repair Products which are out of
warranty the Customer shall not send the same to FCBS unless they are
accompanied by an RMA number previously advised by FCBS's customer services
department and a copy of the relevant sales invoice and are sent in their
original packaging.
11.2 The Customer shall notify FCBS within 5 working days of any delivery
discrepancies or Product damages, other than for the purposes set out in Clause
10. If FCBS issues a returns number (RMA), Products must be returned to FCBS
within 5 working days of the date thereof.
11.3 If FCBS has agreed to carry out repairs or to replace Products (or
any parts thereof) other than for the purpose set out in Clause 10 above the
Customer irrevocably authorises FCBS to carry out such repairs or provide such
replacements as shall place the Products in proper working order.
11.4 FCBS shall accept no liability for any damage to or loss in transit
of Products returned to FCBS whether under this Clause or under Clause 10 above
unless FCBS collects the Products using its own carrier.
11.5 If FCBS has agreed to accept the return of Products, other than for
the purposes set out in Clause 10 above or for the purpose of carrying out any
other repair or replacement, the Products must be returned in their original
packaging and in a clean resalable condition, and will be subject to a
re-stocking fee at FCBS's discretion, failing which FCBS will refuse to accept
the same and the Customer shall remain liable for the price thereof.
11.6 Details of FCBS's returns process and terms can be found on
www.fcbs-store.co.uk and Customer agrees to comply with this process and abide
to the terms when returning any Product to FCBS.
12. Insolvency Of Customer
12.1 If: -
12.1.1 the Customer makes any voluntary arrangements with its creditors
or becomes subject to an administration order or (being an individual or firm)
becomes bankrupt or (being a company) goes into liquidation otherwise than for
the purposes of a solvent amalgamation or solvent reconstruction;
12.1.2 an encumbrance takes possession or a receiver is appointed of any
of the property or assets of the Customer; or
12.1.3 the Customer ceases or threatens to cease carrying on business; or
12.1.4 FCBS reasonably apprehends that any of the events mentioned above
is about to occur in relation to the Customer and notifies the Customer
accordingly;
then upon the happening of any of the above, without prejudice to any other
right or remedy available to FCBS, FCBS shall be entitled to cancel the Contract
and/or suspend any further deliveries or services under the Contract without any
liability to the Customer and if the Products have been delivered and not paid
for then the price shall become immediately due and payable notwithstanding any
previous agreement or arrangement to the contrary.
13. Export Restrictions
13.1 If Customer delivers the Products to its customer who may use the
Products outside the United States or the European Union or EFTA countries,
Customer acknowledges and shall advise its customer that some Products are
controlled for export by the U.S. Department of Commerce or by EU/EFTA member
state bodies and such Products may require authorization prior to export.
Customer agrees that it will not export, re-export, or otherwise distribute
Products, or direct products thereof, in violation of any export control laws or
regulations of the United States or any EU/EFTA member state. Customer warrants
that it will not export or re-export any Products with knowledge that they will
be used in the design, development, production, or use of chemical, biological,
nuclear, or ballistic weapons, or in a facility engaged in such activities,
unless Customer has obtained prior approval from the U.S. Department of Commerce
or any other competent government agency. Customer further warrants that it will
not export or re-export, directly or indirectly, any Products to embargoed
countries or sell Products to companies or individuals listed on the Denied
Persons List published by the U.S. Department of Commerce.
13.2 These restrictions change from time to time. If the Customer has any
questions regarding its obligations under USA export regulations the Customer
should contact the Bureau of Export Administration, United States Department of
Commerce, Office of Export Licensing, Washington DC, USA (202) 377 4811 or the
local United States Consulate.
13.3 Upon request the Customer agrees to confirm in writing its intention
to comply with applicable export and restricted user and uses regulations, by
signing up to the terms in FCBS's reseller application form.
14. Configuration and Other Services
14.1 If agreed in any particular case FCBS will provide configuration
Services to Customer. Configuration Services will be at the price agreed at the
time the order is accepted. The Customer shall be solely responsible for the
accuracy of its order, the specification of the components and their
configuration and for ensuring that the configured product specified is
satisfactory for the purposes for which it is required including without limit
that it has sufficient overall functionality, and will support, be compatible
and inter-operable with any hardware, software or middleware with which it is
intended to operate.
14.2 Configuration Services will have a warranty of 14 days from the date
of shipment to the Customer. FCBS's sole liability (and the Customer's sole
remedy against FCBS) in respect of any defective Services for which FCBS is
responsible shall be the repair by FCBS or at FCBS's option replacement of the
Product on which the Services have been performed. (If any alleged defect shall
be attributable to defect in Product the provisions of Clause 10 shall apply).
Claims in respect of defective Services must be made within 21 days of the date
of delivery of the configured Product.
14.3 FCBS may offer other Services to Customer including direct
fulfilment and billing, installation and support services, storage and
consolidation, and other logistics services. Such Services will be provided
under these Conditions in addition to specific terms agreed upon in writing with
Customer.
15. Miscellaneous
15.1 Customer is not allowed for any purpose whatsoever to use FCBS's
logos and trademarks without FCBS's prior written approval from an Authorised
Representative.
15.2 Customer agrees that FCBS may use Customer data, including any
personal data, for the purpose of marketing and sales of Products, and Customer
agrees to FCBS's collection, storage and use of such data for this purpose.
Personal data will not be shared with third parties without the Customer's
consent. Customer agrees to receive Product information and promotions and other
communications from FCBS by e-mail and other communication tools.
15.3 Customer agrees to comply with its obligations under the WEEE
directive (EC Directive 2002/96/EC of the European Parliament and of the Council
of 27 January 2003) as implemented in the UK.
16. Customer Identification
16.1 Any notice required or permitted to be given by either party to the
other under these Conditions shall be in writing addressed to that other party
at its registered office or principal place of business or such other address as
may at the relevant time have been notified pursuant to this provision to the
party giving notice.
16.2 No waiver by FCBS of any breach of the Contract by the Customer
shall be considered as a waiver of any subsequent breach of the same or any
other provision.
16.3 If any provision of these Conditions is held by any authority to be
invalid or unenforceable in whole or in part the validity of the other
provisions of these Conditions and the remainder of the provisions in question
shall not be affected thereby.
16.4 These Conditions and any Contract shall be governed by the laws of
England and the Customer submits to the exclusive jurisdiction of the English
Courts.
REF 2006I -- First Class Business Solutions Ltd Terms and Conditions Of Sale
