Cobalt Communication Solutions Ltd
Terms & Conditions
This Handbook sets out the relationship between us. Such documents can be long and complex but we have tried to keep this to a minimum in two ways:
• We have attempted to use plain English but if there are areas you do not understand; please ask.
• The Terms are divided into Sections: the first applies to all contracts with us (these General Terms) and there are further terms for specific services (Specific Terms).
This means that you will only be given those additional terms that apply to your particular contract with us.
1.1. So as to be clear, the following words shall have the following meanings:
Contract: these terms, any Specific Terms applying to your order, your order and our Customer Agreement
Equipment: the Hardware and Software agreed to be purchased by you from us as set out in the Customer Agreement
Good Industry Practice: that degree of skill, care, prudence, foresight, operating systems and practice which would ordinarily be expected of a skilled and experienced supplier engaged in the same or similar type of undertaking as that of the Supplier under similar circumstances
Hardware: all physical items listed in the Customer Agreement.
Location: your premises where the Equipment is to be installed or lines connected as specified in the Customer Agreement, or, if none, your principal place of business.
Services: all services to be supplied by you listed in the Customer Agreement.
Software: any operating system or other third party software listed in the Customer Agreement.
2. The terms that apply to the Contract
2.1. These terms and conditions shall apply to all dealings between us and you and take precedence over anything inconsistent in or referred to in your purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2. Only additions to, variations of, exclusions or attempted exclusions of any term of the Contract will be binding on us if they are in writing and signed by a Director or Senior Manager.
3. Quotations and Orders
3.1. A binding contract shall not come into existence between us and you unless and until we issue a Customer Agreement to you, or, if earlier, when we begin to deliver the Equipment.
3.2. The Equipment and the Services shall be as set out in our Customer Agreement or (if there is no Customer Agreement), our quotation.
3.3. Upon our request, you will appoint a project manager with authority to bind you and through whom all communication will be passed.
3.4. We may deliver and invoice the Equipment in instalments.
3.5. All drawings, descriptive matter, specifications and advertising issued by us are provided for illustrative purposes only and do not form part of the Contract.
3.6. We reserve the right to make any changes in the specification of the Equipment which do not materially affect their quality or performance.
3.7. Our employees are not authorised to make any contractually binding promises or representations concerning the Equipment or the Services. In entering into the Contract, you acknowledge that you do not rely on, and waive any claim for breach of, any such representations which have not been confirmed in writing by a Director or Senior Manager.
3.8. Any advice or recommendation given by us or our employees to you or your employees about the storage, application or use of the Equipment or the Services, which is not confirmed in writing, is followed or acted on entirely at your own risk.
4. Finance and Credit
4.1. You agree to allow (and will procure that your owners, directors and officers allow) us to carry out credit reference searches relating to the credit worthiness of your owners and company. In connection with such searches you agree to provide or procure the supply of all relevant information and appreciate that the details of such searches may be seen by others carrying out similar searches.
4.2. You acknowledge that our role in connection with any finance is as your agent and not that of the finance house.
4.3. In the event that we are not able to obtain finance on the terms proposed or otherwise as is acceptable to you, then we will be entitled to terminate this Contract and charge you a restocking charge for any equipment ordered for you.
4.4. If, when payment is due to us, the finance company refuses to pay as a result of your default, then you are liable for the full sum due upon demand.
5. Payment and Price
5.1. All prices shall be as stated in our Customer Agreement. All prices are exclusive of VAT.
5.2. The price for Equipment is based on the published prices of the respective manufacturers prevailing at the date of our Customer Agreement. If we notify you of an increase prior to delivery then you may cancel this agreement by giving notice within 3 working days of being notified of the increase.
5.3. We may, by notice to you before delivery, increase the price of any undelivered Equipment to reflect any change in delivery dates, quantities or specifications requested by you, or any delay caused by you.
5.4. Invoices shall be paid within 30 days of their date, whether or not delivery has taken place or title in the Equipment has passed to you.
5.5. Time for payment of our invoices shall be of the essence of the Contract.
5.6. If you do not pay on time, the whole of the balance of the price of the Equipment and the Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to us, we may appropriate any payment made by you to any outstanding sum, charge interest on the amount and suspend all further delivery of equipment and the provision of any services.
6. Delivery and Installation of Equipment
6.1. We will use our reasonable endeavours to deliver (and if included in the Order Confirmation) install the Equipment and provide the Services on the date or dates specified in our Customer Agreement at the Location, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time. Time is not of the essence as to the delivery of the Equipment or the provision of the Services.
6.2. Delivery and installation shall be made during normal business hours and we may levy additional charges for any deliveries made outside such hours at your request.
6.3. You shall be responsible (at your cost) for preparing the Location for the delivery and installation of the Equipment. In the event that any making good or decorating is required after installation, then that is your responsibility.
6.4. You must ensure that the premises where the Equipment is to be or is installed are and remain suitable and that at the time of installation comprise a safe place of work for our employees. You are responsible for ensuring that our employees have safe access to and from your and you must comply with all health and safety regulations in respect of our employees whilst they are on your premises. You must provide all necessary facilities, such as light, electricity, proper ventilation and sufficient installation space that we request.
6.5. Where we are not installing the Equipment:
6.5.1. we will be responsible for any damage, shortage or loss in transit, provided that you notify us (or its carrier, if applicable) within 3 working days of delivery or the proposed delivery date of the Equipment. Any remedy under this condition shall be limited, at our option, to the replacement or repair of such Equipment which is proven to our satisfaction to have been lost or damaged in transit; and
6.5.2. you will be deemed to have accepted the Equipment when you have had 3 working days to inspect it after delivery or, if earlier, when you use the Equipment other than for test purposes.
7. Risk and ownership
7.1. Where we are installing the Equipment:
7.1.1. The Equipment shall be at our risk until delivery and installation of the Equipment at the Location.
7.1.2. On completion of installation, we will demonstrate the Equipment to you and the Equipment will then be deemed accepted by you. You agree to sign the form of acceptance or the delivery note. If at any time you make use of the Equipment other than for training or test purposes then the Equipment will be deemed to be accepted.
7.1.3. You will not own the Equipment until you have paid everything due to us (or if later, on installation). Until you own the Equipment you must look after it on our behalf, keep it fully insured on our behalf. Any insurance proceeds from a claim must be kept separate from your money and not paid into an overdrawn account.
7.1.4. Your right to possession of the Equipment, before ownership has passed to you, shall terminate immediately if any of the circumstances set out in condition 15.1 arise or if you mortgage or in any way charge the Equipment, or if you fail to make any payment to us on the due date.
7.1.5. If you use banking facilities that involve a charge over your assets then you shall inform the bank or finance house of our ownership and rights in the Equipment.
7.2. You grant us and our employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where your right to possession has terminated, to remove it. All costs incurred by us in repossessing the Equipment shall be borne by you.
7.3. On termination of the Contract for any reason, our rights in this condition shall remain in effect.
8. Software licence
8.1. If Software is included the Order Acknowledgment, the price of the Equipment includes the licence fee for your right to use the Software in accordance with the manufacturer’s current licensing conditions and any further restrictions included in the Order Acknowledgment.
9.1. We will carry out our duties in accordance with Good Industry Practice.
9.2. In respect of Hardware manufactured, or Software created, by others we will use all reasonable endeavours to pass on the warranties provided by the manufacturer of the same.
9.3. If any Equipment is agreed by us to be faulty before acceptance then we will exchange the faulty part free of charge as quickly as possible. If we cannot agree whether there is a fault we both agree to allow the manufacturer to decide.
9.4. In respect of Software, we will during the manufacturer’s warranty period, provide assistance in communicating with the licensor of the Software regarding faults so far as it is reasonable to do so. In respect of Hardware, we undertake, at its option, to repair or replace Equipment (other than Software or consumable items) which is found to be defective as a result of faulty materials or workmanship within the manufacturer’s warranty period.
9.5. If you take out a support contract with us then we will provide a comprehensive service including the replacement of faulty equipment with new.
9.6. The person or persons signing the form of acceptance or delivery note warrant that they have authority to sign the same on your behalf.
10.1. We will not be liable for any non-delivery of Equipment (even if caused by our negligence) unless you notify us in writing of the failure to deliver within 7 days after the scheduled delivery date.
10.2. Our liability for non-delivery of the Equipment shall be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.
10.3. If our performance of our obligations under the Contract is prevented or delayed by your act or omission (other than by reason of a Force Majeure Event), you shall pay us all reasonable costs, charges or direct losses sustained by it as a result, subject to us notifying you in writing of any such claim it might have against you in this respect.
10.4. We will not be liable for a breach of the warranty contained in condition 9 unless:
10.4.1. you give written notice of the defect to us within fourteen days of when you discover or ought to have discovered the defect; and
10.4.2. we are given a reasonable opportunity of examining such Equipment and you (if asked to do so) return such Equipment to our place of business at our cost for the examination to take place there.
11.1. We undertake to provide training in the use of the Equipment for your staff as set out in our Customer Agreement.
11.2. Any additional training required by you will be provided in accordance with our then current scale of charges.
12. Limitation of liability
12.1. The following provisions set out our entire liability (including any liability for the acts or omissions of our employees) to you in respect of any breach of the Contract and any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
12.2. All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
12.3. Nothing in these conditions excludes or limits our liability for death or personal injury caused by our negligence or fraud or fraudulent misrepresentation.
12.4. Subject to condition 12.3:
12.4.1. Because we cannot work out the potential harm to your organisation, we will not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or for any special, indirect or consequential loss, costs, damages, charges or expenses howsoever arising; and
12.4.2. our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to two times the price payable for the Equipment and Services under condition 5.
13. Intellectual Property Rights
13.1. If we manufacture or modify the Equipment or incorporates data or other information at your request, you shall indemnify and keep us indemnified against all losses, damages, costs, claims and expenses incurred by us in connection with any claim for infringement of any third party Intellectual Property Rights which results from that request.
13.2. We hereby assign to you all existing and future Intellectual Property Rights in any software or documentation written specifically by it for you and included in the Equipment or the installation element of the Services.
14.1. Neither party shall, during the continuance of the Contract, or within 6 months of its termination, whether on behalf of itself or a third party, solicit or seek to entice away any employee of the other. In the event of breach of this condition the party in default shall pay the other a sum equal to six months’ gross pay of the employee concerned being a pre-estimate of the cost of recruitment and training a replacement.
15. Termination for Cause
15.1. Either party may terminate this agreement forthwith on giving notice in writing to the other if one party ceases to carry on business or commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 7 days after the receipt of the request in writing from the other to do so, to remedy the breach.
15.2. Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.
16. Dispute Resolution Procedure
16.1. If any dispute arises in connection with this agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within 7 days of a written request from one party to the other, meet promptly in good faith to resolve the dispute.
16.2. If the dispute is not resolved in accordance with condition 16.1, the dispute shall be referred to mediation and the mediator shall be appointed by the Centre for Dispute Resolution.
17. Force Majeure
17.1. We will not be liable to you for any breach of our obligations under this the Contract if such breach is due to an act, event, omission or accident beyond our reasonable control (Force Majeure Event).
17.2. If a Force Majeure Event occurs, we will inform you as soon as possible and take all reasonable steps to mitigate the effects of the Force Majeure event and resume performance of its obligations as soon as possible.
A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
19. Entire Agreement
19.1. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
19.2. Each party acknowledges that, in entering into this Contract, it has not relied on, and shall have no right or remedy (other than for breach of contract) in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement.
You shall not, without our prior written consent (such consent not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
Any notice required to be given pursuant to this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these conditions, or, if to us, by email to [email protected] or such other address as may be notified by one party to the other.
22. Governing law and jurisdiction
The Contract is governed by the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction