Terms & Conditions for the Supply of Goods and/ or Services
THE TERMS AND CONDITIONS BELOW APPLY TO ANY QUOTATION GIVEN AND ANY ORDER PLACED FOR THE SUPPLY OF GOODS AND/OR SERVICES TO THE EXCLUSION OF ANY OTHER TERMS AND CONDITIONS OF BUSINESS INCLUDING THOSE THAT THE CUSTOMER PURPORTS TO APPLY UNDER ANY ENQUIRY, PURCHASE ORDER, SPECIFICATION, OR ANY TERMS THAT ARE IMPLIED BY TRADE, CUSTOM, PRACTICE OR COURSE OF DEALING.
In this Contract, unless the context otherwise appears, the following words and expressions shall have the following meaning:
‘ADR’ or ‘Alternate Dispute Resolution’ Means resolving disputes amicably outside of the traditional court system using mediation or arbitration;
‘Business Day’ Means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
‘Business Hour’ Means the period from 9.00 am to 5.00 pm on any Business Day;
‘Charges’ Means the charges payable by the Customer for the supply of the Goods and/or Services (as applicable) in accordance with Condition 8;
‘Company’ Means One Digital Signage LTD , a company registered in England and Wales (company number 11178850) whose registered office is at Units 11 & 12 Gun Barrel Industrial Centre, Hayseech, Cradley Heath, West Midlands, B64 7JZ ‘Conditions’ These Terms and Conditions for the sale of Goods and/ or the supply of Services as applicable;
‘Contract’ Means the contract between the Company and the Customer for the supply of Goods and/ or Services which incorporates these Conditions;
‘Customer’ Means the person, firm or company who has placed an Order for the supply of Goods and/ or Services from the Company;
‘Delivery Location’ Means the address specified in the Order Confirmation of the relevant Customer;
‘Force Majeure’ Means the circumstances listed in Condition 15;
‘Force Majeure Event’ Means an event circumstance or cause beyond a party’s reasonable control;
‘Goods’ Means the audio-visual equipment and accessories supplied to the Customer;
‘Order’ Means the Customer’s request for the Company to supply the Goods and/ or Services (as applicable) in consideration of the Charges;
‘Order Confirmation’ Means the Company’s written acceptance of an Order setting out details of the Goods and/ or Services and the Price and which may be in any form;
‘Price’ Means the Company’s prices for the Goods and/ or Services as set out in an Order Confirmation;
‘Programming’ Means any programming of third-party software that the Company provides to the Customer as part of the provision of the Services;
‘Services’ Means (as appropriate) the installation of the Goods and/ or the system programming which the Company supplies to the Customer, as applicable;
‘Supplier’ Means the Company;
‘VAT’ Means value added tax chargeable in the UK;
- FORMATION OF A CONTRACT
Any quotations provided by the Company are subject to this Contract and will only remain valid for a period of 30 days.
By placing an Order, the Customer will be bound by this Contract.
Any Order the Customer places will constitute an offer capable of acceptance by the Company. The Company shall not be obliged to accept an Order and reserves the right to refuse an Order without giving any reason.
Each Order that is accepted by the Company and confirmed in writing by an Order Confirmation shall constitute a separate, severable, legally binding Contract between the Customer and the Company and shall be subject to this Contract.
The quotations are not binding and no Contract is formed until the Company confirms the Order in writing by sending the Customer an Order Confirmation.
No addition, alteration, substitution or waiver of this Contract will be valid unless expressly accepted in writing by an authorised representative of the Company.
The Company shall provide the Goods and/ or Services to the Customer subject to and in accordance with this Contract. The Company reserves the right to amend this Contract from time to time and any such changes are effective immediately from the time they are notified to the Customer. Publication of the modified Conditions on the website www.onedigitalsignage.co.uk shall be deemed to be notice to the Customer.
All information, including without limitation, know-how, quotations, specifications, drawings, prints, schematics, software, coding and any other engineering, technical or pricing data or information submitted by the Company to the Customer in a quotation or any other document is the confidential and proprietary information of the Company. Neither the Customer nor its employees, agents or representatives may disclose the Company’s confidential and proprietary information to any third party, unless required to do so by law or regulatory authority.
The Goods supplied by the Company shall be in accordance with the laws concerning the Consumer Rights Act 2015 and Sales of Goods Act 1979 where relevant.
The Goods supplied by the Company shall be in accordance with the Order Confirmation and shall conform with any specification or description contained within the Order Confirmation.
The Company reserves the right to make any reasonable changes in the specification of the Goods due to events beyond the Company’s control such as upgrades in product specification or in the event that any Goods ordered become obsolete between the time of Order and the date of delivery, without notification to the Customer. No changes will be made to the Price without the Customer’s prior written consent.
Any typographical, clerical, or other error or omission in any sales literature quotation, price list, acceptance or offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the Company’s part.
The Company must be informed in writing with 15 business days’ notice of Customer’s desire to change, alteration, make reductions or cancellations of an Order. Subject to Condition 6.4, and if notice is not given and the Customer cancels an order, the Customer will be liable to pay the Company a sum equal to 20% of the value of the Goods, if ordered, which have been cancelled. For the avoidance of doubt, parties may amend the Order if in writing and by mutual consent without the Customer being subject to the Goods cancellation penalty.The Company reserves the right to retain any deposits or charge in full for any Goods ordered where cancellation is not made within the period specified in Condition 6.1.
If the Contract includes the provision of Services and the Customer wishes to cancel before the Services have been carried out, the Customer will not be required to pay that part of the Price that is attributable to the provision of the Services (as set out in the Order Confirmation).
If the Customer is a consumer, their statutory rights will not be affected by Condition 6. If the Customer is a consumer, they will have the right to cancel any order for the supply of Goods within ten (10) business days of the date of delivery of the Goods and any order for the supply of Services within ten (10) business days from the day after the date of the Order Confirmation, without any liability.
The Price shall be confirmed in the Company’s Order Confirmation and invoice including any discount. All Prices are exclusive of Value Added Tax which where applicable shall be charged at the rate from time to time in force.If the rate of value added tax (VAT) increases between the date of the Order placed by the Customer and the date when payment becomes due, the Company will add the necessary additional amount of value added tax to the price of the Goods and/ or Services.
If the Price increases for any other reason between the date of the Order placed by the Customer and the date when payment becomes due, the Company will notify the Customer of this and give the Customer the choice of accepting the price increase or cancelling the Order in which case any monies paid by the Customer will be refunded in full.
The Charges for the Services shall be calculated on a time and material basis:
The Charges shall be calculated in accordance with the Supplier’s daily fee rates as set out on the Order; and
The Supplier’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00am to 5.00pm worked on Business Days;
the Supplier shall be entitled to charge an overtime rate of 5% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in Condition 8.1.2; and the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.The Supplier shall invoice the Customer in accordance with Condition 9.
Subject to Condition 9.2, unless otherwise agreed, payment of the Price of the Goods and/ or Services is payable thirty (30) days after receipt of an undisputed invoice. In some circumstances, the Company may require the Customer to pay a non-refundable deposit of 50% of the Price when the Order is placed with the balance after delivery and payable thirty (30) days after receipt of invoice.Where the Customer is a consumer, payment for the Goods shall be due when the Order is placed. On completion of the Services, an invoice will be raised for that part of the Price that is attributable to the supply of the Services and payment shall be due within 14 days of the date of invoice.
Time for delivery of Goods and Services is of the essence. The Company shall be entitled at its option to charge interest against the Customer at a rate equivalent to 4% per annum above the then base lending rate at Bank of England, daily on all undisputed overdue payments from thirty (30) days after receipt of invoice (both before and after judgement). The Customer shall have no right of deduction, abatement or set-off against the Company, unless agreed by the Company.
Subject to Condition 13.2, the Customer will be deemed to have accepted all of the Goods upon their delivery by the Company to the address specified in the Order Confirmation.The Company will deliver the Goods to the Customer at the address specified in the Order Confirmation.
The Goods being delivered are compliant with the laws of Consumer Rights Act 2015 and Sales of Goods Act 1979 where relevant.
Unless otherwise stated in the Order Confirmation, the Price quoted by the Company includes delivery to the address specified in the Order Confirmation.
The Company will use all the reasonable endeavours to comply with any date quoted for delivery and/ or for the provision of installation services but cannot accept liability whatsoever for the failure to do so. Time for delivery and/ or performance of the Services shall be of the essence.
Where the Goods are to be delivered by instalments, each delivery shall constitute a separate agreement and failure by the Company to deliver any one or more instalments in accordance with this Contract shall not entitle the Customer to reject any other instalment, unless there are repeated failures or the Goods are not to specification.
If the Customer wishes to rearrange the date quoted for delivery and installation, it should contact the Company as soon as possible and in any event, at least 1 business day in advance of the scheduled delivery time. Otherwise, the Customer will be charged one day’s worth of installation charges (approximately £650) unless otherwise agreed with the Company.
When delivery is made by a carrier on the Company’s behalf, claims for loss or damage in transit will only be considered if the Company is given written notification of damage within 2 business days of actual delivery or of non-delivery within fifteen (15) business days of the date quoted for delivery.
The Supplier warrants that on delivery, the Goods shall:
Conform with their description; and
Be of satisfactory quality within the meaning of the Sale of Goods Act 1979.Subject to Condition 11.3, if:
The Customer give notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 11.1;
The Supplier is given a reasonable opportunity of examining such Goods; and the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in Condition 11.1 if: The Customer makes any further use of such Goods after giving notice in accordance with Condition 11.2; 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;
the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
the Customer alters or repairs such Goods without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this Condition 11, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Condition 11.1. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
If the Company has agreed to supply Services, the Customer will be given a job sign-off form to complete and sign when the Company is satisfied that the Services have been successfully completed.In the event that the Customer identifies any defects with the Services, the Company shall carry out any reasonable works necessary in order to remedy such defects to enable the Customer to confirm job sign-off.
Without prejudice to the Customer’s rights under Condition 13 (Warranties), if the Customer does not sign the job sign-off form on the date of completion of the Services, the Services will be deemed to have been successfully completed.
The Company will use all reasonable endeavours to obtain for the Customer the benefit of any warranty or guarantee given by the manufacturer of the Goods.If a Good is within a manufacturer’s warranty, then the Customer is able to rely on the manufacturer’s warranty, the Customer may reject a defective Good within the manufacturer’s warranty period given by the manufacturer, and the Company agrees to facilitate the replacement of the defective Good in accordance with Condition 13.3, at no additional charge to the Customer.
If the Customer is able to rely on the manufacturer’s warranty, the Company will collect the defective Goods and liaise with the manufacturer so that the Goods are repaired or replaced.
If the Company has installed the Goods and the Customer notifies the Company that the Goods are defective within thirty (30) days from the date of the installation (“Goods Warranty Period”), the Company will collect the Goods in accordance with Condition 13.3 free of charge. Otherwise, the Customer will be required to pay a call-out fee to the Company.
If within thirty (30) days of the date on which the Services are carried out (“Service Warranty Period”), there is a problem with the Programming and/ or the software, the Customer should notify the Company and the Company will rectify the problem free of charge and this will be the Customer’s sole remedy in the event of any defects in the Programming and/ or software that occurs in the Service Warranty Period. Otherwise, the Customer will be required to pay a call-out fee to the Company.
The Company warrants that on delivery, the Goods will conform in all material respects with their description and that they will meet any agreed specification (if applicable).
No warranty is given that the Goods are fit for the purpose and the Customer must satisfy itself that the Goods are suitable for their intended use or application.
The Company warrants that the Services will be provided using reasonable care and skill and will be to best industry standard.
All personnel and sub-contractors used by the Company in the performance of the Services are adequately skilled and experienced for the activities they are required to perform.
The Company 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 instructions, misuse or alteration, or repair of the Goods and/ or Programming without the Company’s written approval.
All warranties, conditions and other terms implied by statute and common law are, to the fullest extent permitted by law, excluded from this Contract.
- INTELLECTUAL PROPERTY
The Company shall retain the intellectual property rights (including but not limited to copyright, trademarks and patents) in all drawings, quotations, technical information and know-how supplied by the Company.The Customer agrees not to reverse engineer, deconstruct, or disassemble the Goods or any software or any Programming supplied by the Company and the Customer agrees not to copy or create derivative works of the software or Programming.
The Company owns any Programming that it provides to the Customer as part of the provision of the Services, including the intellectual property rights contained within such Programming. By supplying the Programming to the Customer, the Company does not purport to grant, assign or transfer the intellectual property rights in the Programming to the Customer but grants the Customer a non-exclusive, non-transferable, revocable licence to use the Programming as part of the delivery of the Services.
Any software supplied by the Company belongs to the Company and/ or its software licensors as applicable. Where provision of the Goods and/ or Services incorporates software, title in the software will not pass to the Customer even when the Customer has paid the Price in full.
The Customer agrees to comply with the terms of any software licence relating to software that is supplied with the Goods and/ or Services. Failure to do so may lead to such software licence being revoked by the software owner.
The Customer may need internet access to use any software or Programming supplied under the Contract. The Customer is solely responsible for obtaining, maintaining and paying for internet access and the Company will not be liable in the event that internet access is unobtainable or interrupted.
- FORCE MAJEURE
The Company shall not be liable to the Customer or be deemed to be in breach of this Contract by reason of any failure to perform any of its obligations in relation to the Goods if the failure was due to any cause beyond the Company’s reasonable control (force majeure) including without limitation, acts of God, war, terrorism, civil disorder, industrial dispute, fire, explosions, statutory or government action, difficulties in obtaining raw materials, power failure, internet or communications failure.Upon the happening of a ‘Force Majeure Event’, the Company shall be entitled to a reasonable extension of time for the performance of its obligations.
- RISK AND PROPERTY IN THE GOODS
The risk in the Goods shall pass to the Customer on delivery.Notwithstanding anything contained in the Conditions, the property in the Goods will not pass to the Customer until the Price for the Goods and any VAT due has been paid in full and received by the Company in cash or cleared funds. Title to any Programming and/ or software will not, in any event, pass to the Customer.
Until title in the Goods passes to the Customer:-
16.3.1 The Customer shall hold the Goods on trust for the Company on a fiduciary basis as the Company’s bailee;
16.3.2 The Customer shall store the Goods at no cost to the Company so that they are separately identified as belonging to the Company. If requested by the Company, the Customer shall deliver up the Goods to the Company. If the Customer fails to do so, the Company may enter any premises of the Customer where the Goods are stored and repossess the Goods without any liability to the Customer. If the Goods are stored at the premises of a third party, the Customer will procure the right for the Company to enter such premises and repossess the Goods without any liability to the Customer. In both cases, if necessary, the Company may detach the Goods;
16.3.3 The Customer shall maintain the Goods in a satisfactory condition and keep them insured against all risks for their full price from delivery; and
16.3.4 The Customer shall be entitled to sell the Goods but only in the ordinary course of its business. The proceeds of sale or the Customer claim for such proceeds or insurance proceeds shall be held by the Customer on trust for the Company. Such proceeds shall be paid by the Customer into a clearly identified account separate from any general trading account or accounts of the Customer and must not be paid into any overdrawn bank account.
- LIMITATION OF LIABILITY
The Company does not exclude liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.The Company shall not under any circumstances be liable for any loss of profits, loss of business, depletion of goodwill or any special, indirect, or consequential loss howsoever caused whether by negligence, breach of contract, misrepresentation or otherwise.
The Company’s total aggregate liability to the Customer in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation, restitution or otherwise, in exclusion to Condition 17.1, arising in connection with the performance or contemplated performance of any Contract to which this Contract relate shall be limited to the maximum amount of 120% of the Price paid by the Customer for the relevant Goods and/ or Services giving rise to the Customer’s claim.
Cabling and software is provided by a third party supplier. The Company shall not be liable for any cabling or software that is supplied or used in connection with the Goods and/ or provision of the Services.
The Company shall not be liable or investigate any claim for loss unless the Customer has given the Company written notice within sixty (60) business days of its occurrence and given the Company every facility to investigate such occurrence.
Any advice or recommendation given by the Company or its employees or agents to the customer, its employees, or agents as to the application or use of the goods is followed or acted upon entirely at the Customer’s own risk and accordingly the Company shall not be liable for any such advice or recommendation.
- BREACH AND INSOLVENCY
Either Party may, in its absolute discretion, suspend delivery of the Goods and/ or provision of the Services and/ or terminate the Contract immediately on notice to the other party, if:18.1.1 The other party is unable to pay its debts or becomes insolvent or is subject to an order or a resolution for its liquidation, administration, winding up or dissolution, or has a receiver appointed over all or any of its assets or business, or if the other party ceases or threatens to cease to carry on business;
18.1.2 The other party is in material breach of this Contract and (if such breach is remediable) it fails to remedy such breach within thirty (30) days of being notified in writing to do so; or
18.2 The Customer may terminate the Contract if the Company is unable to effect delivery and/ or provide the Services for more than forty (40) business days due to a Force Majeure Event.
18.3 On termination of the contract, the Customer shall pay to the Company any outstanding invoices and in respect of Goods and/ or Services supplied but for which no invoice has been submitted, the Company shall submit an invoice which shall be payable by the Customer within thirty (30) days from receipt.
- DISPOSAL OF PACKAGING
The Company is not under any obligation to dispose of any packaging, boxes, manuals, or other items supplied in connection with the Goods except where required by local environmental laws or otherwise.If the Customer requires the Company to dispose of any packaging and/or boxes, the Company may at its discretion agree to do so in return for a fee, such fee to be agreed by the parties in each case.
- ALTERNATE DISPUTE RESOLUTION
No party may commence any court proceedings under Condition 20 in relation to the whole or part of the Dispute until 14 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.If the Dispute is not resolved within 14 days after service of the ADR notice, the Dispute shall be finally resolved by the courts of England and Wales in accordance with Condition 24.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
Any waiver of this Contract shall not prejudice or affect the Company’s rights and remedies in respect of any subsequent breach or non-observance of this Contract by the Customer. The Company’s acceptance of any payment after the specified due date shall not constitute a waiver of the Customer’s obligations to make future payments on the specified dates.
- HEALTH AND SAFETY AT WORK
So far as is reasonably practical, the Company ensures that the Goods are safe and are without risk to health when properly used for the purposes for which the Customer has notified the Company that the Goods will be applied.
- GOVERNING LAW AND JURISDICTION
This Contract is governed by the Laws of England and both parties agree to submit to the exclusive jurisdiction of the English courts.
If any part of this Contract shall be found to be invalid or unenforceable, the validity of the remainder of the provisions of the conditions shall not be affected.
The Company aims to provide a high level of service. Any enquiries or complaints regarding the Goods and/ or Services provided by the Company including any queries in respect of invoices the Company has issued should be addressed to Steve Hudson at the address below.
Any notice required to be given by either party under this Contract shall be in writing addressed to the other party at its registered office or principal place of business or in the case of a consumer, the consumer’s home address as stated on the Order Confirmation.Notices may be delivered personally, sent by pre-paid first class post, recorded delivery, fax or email. A notice will be deemed received: if delivered personally, when left at the appropriate address; if sent by pre-paid first class post or recorded delivery, at 9.00am on the second business day after posting; or, if sent by fax or email, one business day after transmission.
- RIGHTS OF THIRD PARTIES
The parties agree that no third party shall be afforded any rights under this Contract.
- ASSIGNMENT AND SUB-CONTRACTING
The Customer shall not, without the prior written consent of the Company, assign any of its rights or obligations under this Contract.
The Company may sub-contract, transfer and/ or assign its rights and/ or obligations under this Contract without the consent of the Customer.
- ENTIRE AGREEMENT
This Contract, together with the relevant Order Confirmation constitute the entire agreement between the Company and the Customer in respect of the Goods and/ or Services and supersede any earlier arrangements, understandings, promises or agreements made between the parties in respect of the Goods and/ or Services.