NXTech Terms and Conditions for Supply of Goods (Business)
Terms and Conditions for Purchasing Goods (Business)
We ‘The Seller’ amend these Terms from time to time. Please read these Terms carefully before ordering any Goods from us. By placing an order for Goods with us, you will be deemed to have accepted these Terms.
These Terms, and any Contract between us, are in English only.
Seller Means NXR GROUP LTD trading as NXTECH of 72 Pinner Green, Pinner,
Middlesex, England, HA5 2AB.
Buyer The person, firm or Company who buys or agrees to buy the Goods from the Seller.
Conditions The terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.
Goods The item/s which the Buyer agrees to buy from the Seller as set out in the Order.
Price The price for the Goods, excluding VAT and any carriage, packaging and insurance costs.
Intellectual Property Rights Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order The Buyer's order for the supply of Goods and/or Services, as set out in the Buyer's purchase order form or the Buyer's written acceptance of the Seller's quotation. For the avoidance of doubt, shall include, but not be limited to contracts concluded by fax or e-mail.
2.1 These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the sale of Goods, to the exclusion of all other terms and conditions including the Buyer’s standard conditions of purchase or any other conditions which the Buyer may purport to apply under any purchase order or confirmation of order or any other document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods from the Seller pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 These Conditions may not be varied except by the written agreement of a director of the Seller.
2.5 These Conditions represent the whole of the agreement between the Seller and the Buyer. They supersede any other conditions previously issued.
The Price shall be the price quoted on the Order.
- Payment and Interest
4.1 Payment of the Price and VAT , and any carriage, packaging and insurance costs shall be due as per the payment terms declared in the Seller’s invoice.
4.2 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 5% per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any judgement.
4.3 The Buyer shall pay all accounts in full and not exercise any rights of set-off or counterclaim against invoices submitted by the Seller.
5.1 The Goods are described in the Order.
5.2 The Seller reserves the right to amend or change the specification of the Goods if required by any applicable statutory or regulatory requirements.
6.1 The Goods are not manufactured by The Seller and each manufacturer provides different guarantees or warranties in respect of their Goods. ‘The Seller’, shall assign any Goods guarantee or warranty rights against the manufacturer of the Goods to you ‘The Buyer’. Please refer to the Goods information for confirmation of the guarantee or warranty provided with the Goods. For details of the applicable terms and conditions of such guarantee or warranty, please refer to the manufacturer’s own website.
6.2 We warrant that such Goods will materially comply with the Specification on delivery. Please note that there may be minor variations between the Goods and its Specification and we do not give any guarantee or warranty in this respect.
6.3 Except as specifically set out in these Terms, the Goods are sold without guarantees, conditions or warranties and as far as legally possible, we expressly exclude all conditions, warranties and other terms which might be implied by law.
- Sale and Purchase
7.1. The Buyer agrees to purchase the Goods from The Seller and The Seller agrees to sell the Goods to the Buyer on these conditions.
7.2. The Buyer shall not be entitled to cancel in whole or in part any order, which The Seller has accepted, or any quotation of The Seller, which the Buyer has issued a purchase order in relation to.
7.3 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable safety or other requirements or which do not materially affect their quality or performance.
- Delivery of Goods
8.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Seller for delivery.
8.2 The Seller undertakes to use its reasonable endeavours to despatch the Goods on an agreed delivery date, but does not guarantee to do so. Time of delivery shall not be of the essence of the contract.
8.3 The Seller shall be entitled to deliver the Goods in instalments in which case each instalment shall be treated as an entirely separate contract and any default or breach by The Seller in respect of any such instalment shall not entitle the Buyer to cancel any other instalment or treat the Contract as a whole as repudiated.
8.4 The Seller shall not be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods. If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the contract, and a pro-rata adjustment to the Price shall be made.
8.5 If the Buyer fails to take delivery of the Goods on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods are ready for despatch, the Seller shall be entitled to store and insure the Goods and to charge the Buyer the reasonable costs of doing so.
8.6 If The Buyer orders Goods from the Seller for international delivery, the order may be subject to import duties and taxes which are applied when the delivery reaches that destination. The Seller has no control over these charges and cannot predict the amount.
8.7 The Buyer will be responsible for payment of any such import duties and taxes. Please contact the local customs office for further information before placing the order.
8.8 The Buyer must comply with all applicable laws and regulations of the country for which the Goods are destined. Many of the Goods The Seller sells are subject to export licence control and The Buyer must ensure that they comply with the laws in force at the time when reselling any Goods (including, but not limited to, the Export of Goods Control Order 1994). The Seller will not be liable or responsible if The Buyer breaks any such law.
- Acceptance of the Goods
9.1 The Buyer shall be deemed to have accepted the Goods on delivery to the Buyer notwithstanding any late delivery by The Seller.
9.2 The Buyer shall carry out a thorough inspection of the Goods within 2 working days and give notice in writing to the seller after discovering that some or all of the goods do not comply with any Warranty, the Buyer must return the Goods to the Seller at the Buyer’s cost and the Seller shall, at its option, repair or replace any Goods that are defective, or refund the price of such defective Goods.
9.3 Where the Buyer has accepted, or has been deemed to have accepted, the Goods the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
- 10. Title and risk
10.1 Risk shall pass on delivery of the Goods to the Buyer’s address.
10.2 Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Seller and shall not pass to the Buyer until the amount due under the invoice for them (including interest and costs) has been paid in full.
10.3 Until title passes the Buyer shall hold the Goods as bailee for the Seller and shall store or mark them so that they can at all times be identified as the property of the Seller.
10.4 The Seller may at any time before title passes and without any liability to the Buyer:
10.4.1 repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Buyer’s right to use, sell or otherwise deal in them; and
10.4.2 for that purpose (or determining what if any Goods are held by the Buyer and inspecting them) enter any premises of or occupied by the Buyer.
10.5 The Seller may maintain an action for the price of any Goods notwithstanding that title in them has
not passed to the Buyer.
10.6 The Buyer’s right to possession of the Goods shall terminate immediately if:
10.6.1 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 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 Buyer or for the granting of an administrative order in respect of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer, or
10.6.2 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/perform any of his/its obligations under the Contract or any other contract between The Seller and the Buyer, or is unable to pay its debts within the meaning or section 123 of the Insolvency Act 1986, (or, where the Buyer is resident in a jurisdiction other than England or Wales, the analogous legislation in that jurisdiction), or the Buyer ceases to trade; or
10.6.3 The Buyer encumbers or in any way changes any of the Goods, or
10.6.4 Anything analogous to any of the foregoing under the laws of any jurisdiction other than England and Wales occurs in relation, relation to the Buyer.
10.7 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods have not passed from the Seller.
10.8 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter and 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.
- Carriage of Goods
Carriage will be chargeable on all sales unless discounted by the Seller as part of the Order. This will be at the rates stated on The Seller’s Order and are subject to change.
- 12. Trademark Rights
It is the buyer’s sole responsibility where they sell the merchandise; the seller and its agent have no influence on this. The seller wishes to emphasise that the custom status of the goods does not imply the trademark rights are exhausted. The buyer should verify themself whether they are entitled to sell the goods in the market where they wish to sell. The buyer is fully responsible and solely liable for any infringement and will indemnify the seller and its agent for any liability in this respect.
- Third Party Rights
13.1. The Seller shall defend any action against the Buyer and (subject to clause 7) pay all damages awarded against the Buyer (except to the extent that the Buyer is 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 Rights of the United Kingdom or misuse of any confidential information belonging to any third party (‘a Claim’)
PROVIDED THAT: –
13.1.1. The Seller shall be notified promptly in writing by the Buyer of any notice of a Claim;
13.1.2. The Seller shall have the sole control of the defence of any action on a Claim and all negotiations for settlement or compromise,
13.1.3. The Buyer shall allow its name to be used in proceedings if necessary and provide all reasonable assistance in defending any action; and
13.1.4. The Buyer shall take all steps reasonably possible to mitigate or reduce any damages and costs, which may be awarded against it as a result of a Claim.
- Limitation of Liability
14.1 Nothing in these Conditions shall limit or exclude the Seller's liability for:
14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2 fraud or fraudulent misrepresentation;
14.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
14.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
14.1.5 defective Goods under the Consumer Protection Act 1987.
14.2 Subject to clause 14.1:
14.2.1 The Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement; and
14.2.2 the Seller's total liability to the Buyer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid for the product/s plus any delivery charge paid.
14.3 After any Warranty Period provided by the manufacturer, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.4 This clause 14 shall survive termination of the Contract.
- Termination of Agreement
15.1 The Seller shall be entitled to terminate the Order forthwith by notice in writing to the Buyer if:
15.1.1 The Buyer being in material or persistent breach of any of the terms of this Agreement; or
15.1.3 The Buyer dying or becoming by reason of incapacity incapable of managing their affairs; or
15.1.4 The Buyer having a bankruptcy order made against them or making any arrangement with their creditors or having an interim order made against them; or
15.1.5 The Buyer taking any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
15.1.6 There being a change of control of The Buyer; or
15.1.7 The Buyer’s financial position deteriorates to such an extent that in the Seller’s reasonable opinion that The Buyer’s capability to adequately fulfil its obligations under this Agreement have been placed in jeopardy; or
15.1.8 The Buyer doing any action manifestly prejudicial to the interests of the Seller or which in the opinion of the Seller may bring them into disrepute; or
15.1.9 The Buyer being convicted of any criminal offence other than a minor driving offence under the road traffic legislation in the UK or elsewhere for which a fine or non-custodial penalty is imposed; or
15.1.10 The Buyer offering, promising or giving a bribe or requesting, agreeing to receive or accepting a bribe or bribing a foreign public official in connection with the Services contrary to the Bribery Act 2010;
and that The Buyer shall have no claim against The Seller in respect of the termination of their appointment for any of the reasons specified pursuant to Clauses 15.1.1 to 15.1.10.
- 16. Consequences of Termination
16.1 In the event of termination by The Seller pursuant to clause 15 above then, without prejudice to any other right or remedy available to The Seller, The Seller shall be entitled to cancel the Agreement or suspend any further deliveries under it without any liability to the Buyer and, if the Goods have already been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and The Seller shall be entitled to charge interest (both before and after any judgement) at the rate of 5% over the base rate from time to time of the Bank of England from the time of such cancellation or suspension until The Seller receives payment.
In addition The Seller reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998.
16.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
16.3 The termination of this agreement however occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.
- 17. Insurance
The Seller further warrants to the Buyer that they will:
Take out and maintain throughout the term of this Agreement, adequate professional indemnity
insurance to protect themselves against any liabilities arising out of this Agreement and shall produce,
at the request of the Buyer, a copy of the insurance policy or policies and relevant renewal receipts for
inspection by the Buyer.
- 18. Data Protection and Data Processing
18.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 19 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this Clause Applicable Laws means (for so long as and to the extent that they apply to the Contractor) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
18.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Buyer is the data controller and the Seller is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
18.3 [Without prejudice to the generality of Sub- clause 19.1, the Buyer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Seller for the duration and purposes of the Contract.]
18.4 [Without prejudice to the generality of Sub-clause 19.1, the Seller shall, in relation to any Personal Data processed in connection with the performance by the Seller of its obligations under the Contract:
18.4.1 [Process that Personal Data only on the written instructions of the Business unless the Seller is required by Applicable Laws to otherwise process that Personal Data. Where the Seller is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Seller shall promptly notify the Buyer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Seller from so notifying the Buyer;]
18.4.2 Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Buyer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
18.4.3 Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
18.4.4 Not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Buyer has been obtained and the following conditions are fulfilled:
- The Buyer or the Seller has provided appropriate safeguards in relation to the transfer;
- The Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- The Seller complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- The Seller complies with reasonable instructions notified to it in advance by the Buyer with respect to the processing of the Personal Data;
18.4.5 [Assist the Buyer, at the Buyer' cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;]
18.4.6 [Notify the Buyer without undue delay on becoming aware of a Personal Data breach;]
18.4.7 [At the written direction of the Buyer, delete or return Personal Data and copies thereof to the Buyer on termination of the agreement unless required by Applicable Law to store the Personal Data; and]
18.4.8 [Maintain complete and accurate records and information to demonstrate its compliance with this Clause 19.]
18.5 [The Buyer does not consent to the Seller appointing any third-party processor of Personal Data under the Contract.]
18.6 [Either party may, at any time on not less than 30 days' notice, revise this Clause 19 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract)].
- 19. Notices/Communications
19.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
19.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in this Agreement or to such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this Clause; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by ore-mail, one Business Day after transmission.
19.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- Entire Agreement
20.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- Force Majeure
21.1 If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue;
21.2 For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:
21.2.1 Strikes, lockouts or other industrial action;
21.2.2 Terrorism, civil commotion, riot, invasion, war threat or preparation for war;
21.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;
21.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and
21.2.5 Political interference with the normal operations.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
24.1 No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
24.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
- Law and Jurisdiction
25.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
25.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).