Terms and Conditions
Date Issued: March 2022
1. Terms and Conditions
1.1 The terms and conditions (“Terms and Conditions”) set out below apply to and shall be incorporated in the Contract.
1.2 Definitions: In these Terms and Conditions,
“Contract” means your order and our acceptance of it in accordance with paragraph 3; “Order Confirmation” means our written confirmation of your order in respect of the Products; “Products” means network/computer hardware, peripherals, accessories and Software agreed in the Contract to be purchased by you from us (including any part or parts of it); “Software” includes any operating system pre-installed on the Products and any additional software product together with all relevant documentation, manuals, printed and written matter in relation to it; “Supplier” means our third party suppliers; “we”, “us” or “our” means Qolcom Limited (number: 4049238); “you” means the person, firm or company who purchases Products from us.
1.3 These Terms and Conditions prevail over any inconsistent terms or conditions contained in or referred to in any purchase order, confirmation of order, or specification supplied by you, or implied by law, trade custom, practice or course of dealing.
1.4 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on us unless it is in writing and signed by our duly authorised representative.
2. Prices and Quotations
2.1 The price of the Products shall be the price, and the quantity and description of the Products shall be as set out in the Order Confirmation.
2.2 Prices and pricelists may be amended without notice at any time prior to the issue of an Order Confirmation. Once an Order Confirmation has been delivered the provisions of paragraph 2.4 below shall apply.
2.3 All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties.
2.4 We reserve the right to increase the price from that set out in the Order Confirmation if, after confirming the order, cost increases occur, including (without limitation) as a result of agreed changes in the specifications between you and us, or changes in any taxes, duties or levies charged on or in relation to price increases by Suppliers or exchange rate fluctuations.
3. Contract of Sale
3.1 All samples, drawings, descriptive matter, specifications and advertising or promotional materials issued by us, and any descriptions or illustrations contained in our catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract. Any typographical, clerical or other error or mission in any sales literature, quotation, price list, acceptance or offer, invoice or other document or information issued by us is subject to correction without any liability on our part.
3.2 Our employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Products.
3.3 A binding contract shall not come into existence between you and us unless and until we issue an Order Confirmation, or we deliver the Products to you (whichever occurs earlier).
3.4 We are not obliged to provide any installation, configuration or support services unless the rendering of such services is agreed in writing between you and us. Any such services will be the subject of a separate contract and shall not form part of this Contract.
3.5 We reserve the right to change the Products (including, without limitation, the description of the Products), at our discretion, especially in the course of product improvements/developments, provided that this does not detrimentally affect the performance of the Products.
4.1 We may invoice you for the Products at any time upon or after sending you an Order Confirmation.
4.2 Unless we have agreed to extend credit to you, you must pay us in full and without any set-off as soon as reasonably practicable after receipt of an Order Confirmation and in accordance with the instructions on our invoice.
4.3 Where we have agreed in writing to extend credit to you, you must pay in full and without any set-off within 30 days of delivery of the Products to you. The terms of any credit are at our sole discretion and may be varied or discontinued at any time.
4.4 Time for payment of the price shall of the essence of the Contract.
4.5 If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 4% per annum above the current overdraft rate charged by our bankers, compounded monthly on the first day of each month until payment in full is received, and we may charge you costs incurred (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further Products until all outstanding amounts are paid.
4.6 Notwithstanding paragraph 4.3 above, all amounts shall immediately become due and payable if we reasonably believe that the information which you have given to us in your application for credit is incorrect or no longer correct and you have failed to give us correct information satisfactory to us within five days of request, if you become subject to any of the events listed in paragraph 11.2 or if you fail to comply with any of the provisions of this Contract.
5.1 We will use reasonable endeavours to ensure that delivery of Products is as specified in our Order Confirmation, but any such date is approximate only.
5.2 Partial deliveries of Products by us are allowed and can be invoiced separately to you.
5.3 Time shall not be of the essence in relation to any estimated delivery dates given and we are not in any circumstances liable for any delay in delivery, however caused.
5.4 You are responsible for insurance and risk in the Products from the time they are handed to the carrier to when they are received by you from the carrier, or from when they are collected by you or your agent and/or other authorised representative from our premises (as notified to you in writing prior to your collection of the Products). For the avoidance of doubt, where the Products are collected by you from our premises, delivery is deemed to take place from your collection of the Products, and if the Products are being delivered to you by a carrier then delivery shall take place from when the Products are handed by us to the carrier for transportation to you at a location as agreed in writing between you and us prior to delivery.
5.5 The risk of damage or loss of the Product (other than Software) shall be transferred from us to you at the time the Product is handed over to the carrier in preparation for transportation of the Product to you.
5.6 The delivery of Software shall be deemed to have taken place when we send you a licence key in order to download or use the Software.
6. Retention of Title
6.1 Ownership of the Products shall pass to you upon receipt in full in cleared funds all sums due to us in respect of: a. the Products; and b. all other sums which are or become due to us from you on any account. Products delivered for testing and demonstration purposes shall remain our property.
6.2 You must not pledge or transfer ownership of Products where title has not fully passed to you pursuant to paragraph 6.1. If you become subject to any of the events listed in paragraph 11.2, you will inform all relevant parties about our ownership in such Products and notify us immediately in writing.
6.4 Where we reasonably believe you are or will be in breach of any part of paragraphs 4 or 6 of these
Terms and Conditions, we or our agents may without notice enter any premises under your control to remove any Products which are our property, whether or not those Products are installed in or attached to any other goods, and without prejudice to our other rights. You shall indemnify us against all losses, costs and/or claims in respect of any exercise of our rights under this paragraph 6.4.
6.5 You shall treat the Products for which title has not passed pursuant to paragraph 6.1 with all reasonable care, in particular you shall insure them (with a reputable insurer) at your own expense against fire, water and theft at full replacement value. You are obliged to handle the Products with proper care and store them in a manner to enable them to be identified and cross referenced to particular invoices issued by us.
7. Your Obligations and Responsibilities
7.1 It is your sole responsibility to ensure that you are clear as to the functionality, design and/or other features of the requested Products. For the avoidance of doubt (subject to paragraph 10.1) we shall have no liability in respect of any one or more of these matters.
7.2 You must check the Products (or, in the case of Software, test the relevant Software to ensure that it is working) immediately upon receipt for completeness and compliance with the delivery documents and any defects. If no written complaint within seven days from the delivery date has been received by us, the Products are considered as irrevocably accepted by you, unless it concerns a defect which was not detectable at the time of first inspection by you.
7.3 If the delivered Products show visible damages or missing parts then you must record them on the notice of receipt of the transport company in writing upon delivery. The note must clearly state the damage or the shortfall.
7.4 You are responsible (at your cost) for preparing the delivery location for the delivery of the Products and for the provision of all necessary access and facilities reasonably required to deliver and install the Products. If delivery or installation of the Products is not possible on the specified date because no such preparation has been carried out, we may levy additional charges to recover losses arising.
8.1 Except as provided herein, the Customer shall not be entitled to return any Product or cancel any Orders which Qolcom has accepted without Qolcom’s prior written agreement and any such cancellation or return shall be subject to:-
(a) the Customer indemnifying Qolcom in full for any costs, charge, expenses, damages, or loss (including loss of profit) incurred or suffered by Qolcom in respect of such return or cancellation; and
(b) the Product returned being accompanied by a returns reference number issued by Qolcom and being in stock condition, complete with all packing and appropriately boxed.
8.2 The Customer shall be responsible for the cost of carriage and insurance in respect of all Products returned to Qolcom, which Products shall also be at the Customer’s risk until actual receipt by Qolcom.
9.1 We do not manufacture any of the Products and therefore, to the fullest extent permitted by law (and subject always to paragraph 10.1), all warranties, conditions and other terms in respect of quality, defects in design, workmanship, conformity with description and/or fitness for purpose are excluded and we make no representation in respect of the same. We will use reasonable endeavours to pass on to you the benefit of any warranty provided by a Supplier in respect of the Products. Any warranty provided by a Supplier may contain exclusions and you should check these carefully before contacting us or the Supplier about a defect.
9.2 Upon receipt of written notice from you as to defects in quality, workmanship or otherwise in respect of the Products, we shall, if your notice contains a valid claim under a Supplier’s warranty, use our reasonable endeavours to contact the Supplier of the relevant Product and provide them with reasonable details of the relevant defect for them to respond to you directly. For the avoidance of doubt, we shall not be liable or responsible for any response (or failure to respond) on the part of any such Supplier.
9.3 Our obligations under paragraph 9.2 do not apply where the relevant Products have been altered, modified and/or otherwise changed by you and/or a third party without our prior written consent, where you have not used the Product in accordance with either our or the Supplier’s instructions, where the issue with the Product is caused by fair wear and tear, where you have used parts and/or accessories with a Product that have not been approved for the purpose by us or the Supplier, and/or where we have had to alter the Products pursuant to paragraph 3.5. In addition, our obligations do not apply to Software that is not used in an agreed system environment (as we may notify you in writing from to time).
9.4 Where a replacement Product is provided you must, at your own cost, and within 30 days after receipt of the replacement Product, send us the faulty Product. In the case of Software, copies of Software may not be retained by you. Upon receipt of a returned Product, if we or the Supplier (as the case may be) deem the returned Product not to be faulty, then we shall be entitled to charge you for the replacement Product.
10. Limitation of Liability
10.1 This paragraph 10 sets out our entire financial liability (including without limitation any liability for the acts or omissions of our employees, agents and sub- contractors) to you in respect of: a. any breach of the Contract; and b. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
10.3 Nothing in these Terms and Conditions shall limit or exclude our liability for: a) death or personal injury caused by our negligence; or b) fraud or fraudulent misrepresentation.
10.4 Subject to paragraphs 10.2 and 10.3:
a) We shall not in any circumstances be liable, whether in contract, tort (including without limitation for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent) or otherwise for loss of profit, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and Our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price payable for the Products in accordance with paragraph 5.
11.1 Without prejudice to any other right or remedy available to us, we may terminate the Contract or suspend any further deliveries under the Contract without liability to you and, if the Products have been delivered to you but not paid for, the price shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary if you become subject to any of the events listed in paragraph 11.2.
11.2 For the purposes of paragraph 11.1, the relevant events are: a) you suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or admit inability to pay your debts, or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986; b) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors; c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up; d) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you; e) the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver; f) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; g) you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; h) there is a change of your control (within the meaning of section 1124 of the Corporation Taxes Act 2010).
11.3 Termination of the Contract, however arising, shall not affect any rights, remedies, obligations and liabilities that have accrued up to the date of termination.
11.4 Paragraphs which expressly or by implication survive termination of the Contract shall continue in full force and effect.
12. Intellectual Property
12.1 All intellectual property rights in relation to the Products shall remain the property of us or any Supplier entitled to it (as the case may be), and neither us nor any Supplier agrees to transfer any right, title or interest in any intellectual property rights it may have to you.
13.1 Where Products are supplied for export from the United Kingdom, the provisions of this paragraph 13 shall override any other provision of these Terms and Conditions.
13.2 You shall be responsible for complying with any legislation governing: a. the importation of the Products into the country of destination; and b. the export and re-export of the Products, and shall be responsible for the payment of any duties on it.
13.3 Unless otherwise agreed in writing between you and us, the Products shall be delivered free on board the air or sea port of shipment and we shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
13.4 You shall pay the price for the Products in pounds sterling.
14.1 You may not assign any of your rights or obligations under the Contract. We may assign any of our rights and obligations under the Contract.
14.2 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this paragraph shall not affect the validity and enforceability of the rest of the Contract.
14.3 Any notice required or permitted to be given by either party to the other shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified, pursuant to this provision to the party giving the notice.
14.4 No failure or delay by us to exercise any right or remedy under this 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 rights or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 This Contract constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understanding between you and us, whether written or oral, relating to its subject matter.
14.6 No one other than a party to this Contract shall have any right to enforce any of its terms.
14.7 This Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation are governed by the laws of England and any dispute under it shall be subject to the exclusive jurisdiction of the courts of England.