1. Interpretation

1.1 Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from the Supplier.

Delivery Location: shall be as agreed between the parties.

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

Goods: the goods (or any part of them) set out in the Order.

Order: the Customer's order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.

Supplier: University of Portsmouth Higher Education Corporation, registered office at University House, Winston Churchill Avenue, Portsmouth, Hampshire PO1 2UP.

1.2 Interpretation

  1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to a party includes its successors and permitted assigns.
  3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
  4. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  5. A reference to writing or written does not include fax or email.

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.

2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

3. Goods

3.1 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.1 shall survive termination of the Contract.

3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

3.3 The Customer acknowledges and agrees that this Contract does not operate to transfer any intellectual property rights in the Goods, and that any pre-existing intellectual property rights in the Goods shall remain the property of the Supplier or its licensors.

4. Delivery

4.1 the Supplier shall ensure that:

  1. each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

4.2 The Supplier shall deliver the Goods to the Customer’s premises or such other location as may be advised by the Supplier prior to delivery (Delivery Location) at a time to be agreed between the parties.

4.3 Delivery is completed on the completion of loading of the Goods at the Delivery Location.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. the Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to take delivery of the Goods within 2 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract.

5. Quality

5.1 the Supplier warrants that on delivery the Goods shall:

  1. conform with the specification; and

  2. be free from material defects in design, material and workmanship.

5.2 the Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:

  1. the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

  2. the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;

  3. the Customer alters or repairs such Goods without the written consent of the Supplier;

  4. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

  5. the Goods differ from the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.3 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6. Price and payment

6.1 The price of the Goods shall be the price set out in the Order.

6.2 the Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

  1. any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

  2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

  3. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

6.3 The price of the Goods:

  1. excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and

  2. excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer

6.4 The Customer shall pay in advance for the Goods by credit card using the Supplier’s online store sytem.

7. Limitation of Liability

7.1 The restrictions on liability in this clause 7 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

7.2 Nothing in in the Contract limits any liability which cannot legally be limited, including liability for:

  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

  2. fraud or fraudulent misrepresentation;

  3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

  4. defective products under the Consumer Protection Act 1987.

7.3 Subject to clause 7.2, the Supplier's total liability to the Customer shall not exceed £10,000.

7.4 Subject to clause 7.2, the following types of loss are wholly excluded:

  1. loss of profits;

  2. loss of sales or business;

  3. loss of agreements or contracts;

  4. loss of anticipated savings;

  5. loss of use or corruption of software, data or information;

  6. loss of or damage to goodwill; and

  7. indirect or consequential loss.

7.5 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

7.6 This clause 7 shall survive termination of the Contract.

8. Termination

8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:

  1. the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 of that party being notified in writing to do so;

  2. the Customer takes 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), 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;

  3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

  4. the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1(b) to clause 8.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.

8.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

9. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 2 months, the party not affected may terminate this Contract by giving 30 days’ written notice to the affected party.

10. General

10.1 Assignment and other dealings.

  1. the Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

  2. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

10.2 Entire agreement. The parties each acknowledge that this Contract contains the whole agreement between the parties and that it has not relied upon any oral or written representation made by any other or any party’s employees or agents. It is expressly agreed and understood by the Parties that this Contract takes precedence over any purchase order terms and conditions which may accompany any purchase order supplied for invoice purposes

10.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

10.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.

10.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 10.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

10.6 Notices.

  1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

    • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business.

  2. Any notice or other communication shall be deemed to have been received

    • if delivered by hand, on signature of a delivery receiptor at the time the notice is left at the proper address;

    • if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the two Business Day after posting or at the time recorded by the delivery service; and

    • if sent by , at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.6(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

  3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

  4. A notice given under this agreement is not valid if sent by email.

10.7 Third party rights.

  1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

  2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

10.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

10.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

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