1. These Conditions
(1) In these terms & conditions the word ‘Criterion’ means Criterion Systems Limited, the words `the customer’ shall mean the person, firm or company purchasing or agreeing to purchase goods or services from Criterion, the words ‘these conditions’ shall mean the terms & conditions of sale set out here in and the word goods’ shall mean all equipment, spare parts. other goods, repairs or services to be provided to the customer by Criterion.
(2) All agreements by which Criterion agrees to supply goods or services to the Customer shall be subject only to these Conditions notwithstanding any variation or attempted variation of these Conditions made by the Customer in its order form or otherwise and save as provided by clause 1 (3) of these Conditions the making of an order by the Customer for the goods or services supplied by Criterion shall for all purposes be deemed to be acceptable by the Customer of these Conditions to the exclusion of any other terms & conditions. any brochure in which these terms & conditions are incorporated shall constitute an invitation to treat by Criterion and any order placed by the Customer shall constitute an offer for goods incorporating these Conditions made by the Customer which Criterion in its discretion accepts ,in writing or by telephone or fax. No cancellation of any order by the Customer shall be valid unless made in writing and accepted in writing by Criterion.
(3) No variation of these Conditions is permitted unless expressly accepted in writing by a Director of Criterion.
2. The Goods
(1) Subject to the warranty contained in clause 6 (1), all descriptions. drawings and particulars relating to the goods in any catalogues, leaflets, brochures or other documents are for illustrative purposes and do not form part of the agreement between Criterion and the Customer. All representation as to the performance of the goods are based on information supplied by the manufacturer of the goods and relate to their performance in normal conditions and when used correctly
(2) Unless otherwise expressly agreed, goods supplied will be in accordance with manufacturer’s normal designs and specifications current at that date of manufacture or delivery and the supply by Criterion of goods differing from any contractual or pre-contractual specifications or descriptions shall not be a breach of the agreement between Criterion and the Customer insofar as the goods are of approximately equivalent performance to the goods referred to in such specifications or descriptions.
3. Delivery, Installation and Risk
(1) Unless otherwise expressly agreed, the price shown in the current price list of Criterion is exclusive of Value Added Tax and of the cost of packing and carriage which will be charged at Criterion normal rates.
(2) The time for delivery or installation of the goods are not of the essence The agreed dates for delivery or installation are estimates only and a failure by Criterion to comply with them shall not be a breach of these conditions.
(3) The Goods shall be at the Customers risk at the time of delivery or installation or if the Customer has requested that they have arranged the collection of goods, at there risk on the date that Criterion has notified the Customer that the goods are ready for collection.
(4) Where the goods are installed by the Seller, it is the Buyers responsibility to obtain, `make available’ and pay all licences, permits, wayleaves, easements. mains electric power supply, conduits, sockets and such like as are necessary for the installation of the goods by the agreed date for the commencement of the installation and to provide all the necessary access, information and co-operation to enable the installation to proceed from that date.
(5) The Customer is required to inspect the goods on receipt and to notify Criterion of any defects or complaints within 7 days.
(6) If any payment due to Criterion is overdue for 30 days or if the Customer ceases to trade or enters into any agreement with its creditors or shall become insolvent or has a receiver or administrative receiver appointed or a petition is presented or a resolution passed for the winding up of the Customer (if the Customer is a Company) other than for the purpose of a solvent reconstruction or amalgamation previously notified to Criterion, the Customer shall then be deemed to have repudiated any agreements it may then have with Criterion who shall be entitled to any other rights or remedies available to it to stop any goods in transit and to cancel any further deliveries.
4. Property in the Goods
(1) Notwithstanding risk in the goods passed to the Customer in accordance with cause 3 (3) of these Conditions the goods shall remain the sole and absolute property of Criterion and title to and legal and equitable ownership of the goods shall not pass to the Customer until payment is received by Criterion of all monies due from the Customer to Criterion in respect of all goods supplied by Criterion to the Customer and the Customer acknowledges that until such payment is made in full it is in possession of the goods solely as a fiduciary for Criterion.
(2) The Customer is licensee by Criterion to use or agree to sell the goods provided that the entire proceeds or any sale of such goods are held in trust for Criterion and are not mixed with other monies or paid into an overdrawn bank account and shall at all times be identifiable as Criterion money.
(3) Until title of the goods passes to the Customer the goods shall be kept separately and distinct from all other property of the customer and of third parties and in good condition and stored in such a way as to be clearly identifiable as belonging to Criterion and the Customer will not cause or permit or suffer any labels, badges. serial numbers or other means of identification of the goods to be removed or obscured.
(4) Criterion may for the purpose of recovering its goods enter upon any premises where they are stored or were they are reasonably thought to be stored and may repossess the same.
5. Price and Payment
(1) Unless otherwise expressly agreed, the price is payable on delivery of the goods with invoice. If the Customer does not take delivery when requested, the price is payable 7 days after Criterion has requested the Customer to take delivery, together with a reasonable charge for the care and storage of the goods.
(2) Time for payment is of the essence and if payment is not made within 30 days from the date of invoice, Criterion may require the customer to pay 1.5% interest per month from the date of invoice compounded monthly.
(3) It payment should not be made in 30 days, Criterion will be entitled to charge (in addition to interest and any legal costs ordered by the Court and without prejudice to any other rights or remedies available to Criterion) the sum of £100 plus VAT by way of liquidating damages and as a contribution to the administrative casts incurred by Criterion in taking steps to secure payment.
(4) Unless otherwise stated, all payments are to be made in sterling to Criterion’s address as stated on the invoice.
(5) Where any agreement to supply goods provides for goods to be delivered by instalments which are to be separately paid for, such agreements shall not be severable and failure by the Customer to pay for or accept delivery of any instalment by the due date shall entitle Criterion at its option to treat the whole agreement with the Customer as repudiated.
(6) The price may be increased by Criterion at its discretion to take account of fluctuations of exchange rates or increases in the cost of the goods to it or taxes or otherwise.
(7) The price shall be payable without any deduction or set-off.
6. Warranty and Liability of Criterion
(1) Criterion undertakes to credit the account of the Customer (if any) or to remedy free of charge by repair or replacement any defects in the goods covered under the manufactures guarantee provided that the Customer notifies Criterion promptly of such a defect and where the Customer arranges for the prompt return to Criterion of the defective goods at the Customers risk and expense.
(2) Save as herein specifically provided and save to the extent that the same cannot be statute be excluded all conditions and warranties or representations expressed or implied statutory or otherwise in relation to the goods are hereby excluded. Noting in this clause 6 (2) of these conditions shall exclude the undertakings implied by section 12 of the Sale of Goods Act (1979).
(3) Criterion does not exclude liability in respect of death or personal injury which results from the negligence of Criterion, its employees, agents and subcontractors.
(4) Criterion shall not be liable for any financial consequential or indirect loss suffered by the Customer or any third party whether such a loss arises from breach of a duty in contract or tort or in any other way including without limitation to the generality of this exclusion, loss of profit economic loss, loss of goodwill. loss of contracts. loss of data, damage to the property of the Customer or anyone else (other than damage caused by the negligence of Criterion or any of Its employees, agents or subcontractors) and personal injury to the Customer or anyone else (except so far as such injury is attributable to Criterion negligence).
(5) To be valid, any claim against Criterion whether in contract or in tort must be brought within two years of the date of invoice and any such claim shall be limited to an amount by way of liquidated damages equal to the invoice value of the goods in respect of which the claim is made.
7. Force Majeure
Criterion shall not be liable to the Customer for any failure to perform its obligations due to any circumstances beyond its control (including with out limitation strikes, lock- outs industrial disputes, failure or power supply delays caused by British Telecommuncations plc. or any other person, firm or company delays caused by manufacture of the goods, riots, civil disturbances. war or war-like activity, embargoes, fire, explosion, flood or natural causes) and in such event Criterion may elect by written notice to cancel any agreement with the customer or elect that the time for performance shall be extended until such time as Criterion can reasonably effect performance.
If the Customer shall be in breach of any of these conditions then failure by Criterion to require the Customer to rectify the same shall not create any assumption that such a breach has been waived by Criterion.
All demands, notices and other communications shall be in writing and addressed to Criterion at its address shown in invoices delivered by it and to the Customers the address given by it for delivery of invoices (or as subsequently notified by one to the other in writing) and shall be deemed to be duly given or made by letter 48 hours after being posted by first class postage pre-paid or if delivered by hand at the time of delivery or if given or made by fax when the Sender shall receive the answer back of the person to whom it was sent.
10. Law and Jurisdiction
These terms and conditions shall be governed by and construed in accordance with English law.