1.1. Definitions. In these Terms, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Contract: the contract between ProTelX and the Customer for the sale and purchase of the Goods in accordance with these Terms.
Customer: the person or firm purchasing the Goods from ProTelX.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order, marketed, sold and/or distributed by ProTelX under the GPO Retro brand name.
GPO Retro: the brand and trading name of ProTelX in relation to the Goods.
Order: the Customer's order for the Goods, as stipulated by (and placed pursuant to) clause 2.3et out in the Customer's purchase order form, the Customer's written acceptance of ProTelX's quotation, or overleaf, as the case may be.
ProTelX: ProTelX Limited (registered in England and Wales with company number 6970223), being the supplier of the Goods hereunder.
Terms: the terms and conditions set out in this document, as amended from time to time in accordance with clause 11.6.
1.2. Construction. In these Terms, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted, and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2.1. These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by 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 Terms. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3. The Order must at all times be placed by the Customer via or through ProTelX's GPO Retro portal ("the Portal"), in the absence of ProTelX's agreement that the Order may be placed by way of an alternative method.
2.4. In the event that the Order is submitted via or through the Portal by no later than 3.00pm on a Business Day, ProTelX will use reasonable endeavours to dispatch the Goods within 1 Business Day, with a view to the Goods being received by the Customer within 2 Business Days. The provisions of this clause 2.4 is limited to Orders for Goods to be delivered within the UK, and Orders for Goods where delivery is outside the UK will be delivered as soon as practicably possible.
2.5. The Order shall only be deemed to be accepted when ProTelX issues a written acceptance of the Order, at which point the Contract shall come into existence. The written acceptance shall be in the form of a Sales' Invoice which will be raised and a copy provided within 24 hours of receipt by ProTelX of the Order (or as soon as practicable thereafter).
2.6. For the avoidance of doubt, only those Goods which are included on the Sales' Invoice shall be included within the Order, and any Goods which appear on the Order but not on the Sales' Invoice shall be included on a subsequent Sales' Invoice provided pursuant to this clause 2 as soon as ProTelX has processed the Order and has agreed to supply the relevant and applicable Goods.
2.7. There is no minimum quantity requirement for each Order.
2.8. In the event that the Order is for a sum in excess of £500 (plus VAT, where applicable) and is for delivery within the UK (excluding Northern Ireland), then ProTelX will deliver the Goods thereunder at no delivery cost to the Customer.
2.9. In the event that the Order is for a sum of less than £500 (plus VAT, where applicable) and is for delivery within the UK (excluding Northern Ireland), then ProTelX will deliver the Goods subject to a delivery cost in the sum of £7.95 per Order.
2.10. In the event that the Order is for delivery outside the UK (or for delivery to Northern Ireland), then ProTelX will charge delivery costs regardless of the value of the Order, and such delivery costs will be determined according to the weight and size of the Order.
2.11. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ProTelX which is not set out in the Contract.
2.12. Any samples, drawings, descriptive matter, or advertising produced by ProTelX and any descriptions or illustrations contained in ProTelX's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them, and shall not for the avoidance of doubt form part of the Contract or be contractually binding. 2.13. A quotation shall only be valid for a period of 20 Business Days from its date of issue. 2.14. In the event that the Customer submits an Order for Goods that are not in ProTelX's stock at the time the Order is submitted, ProTelX will notify the Customer accordingly and, unless the Customer instructs ProTelX to the contrary, the Order will be placed, but in the basis that the Goods will be dispatched as soon as they become available, and ProTelX will endeavour to fulfil the Order and dispatch the Goods as soon as practicable.
3.1. The Goods are described in ProTelX's GPO Retro catalogue and online portal at www.gporetro.com.
3.2. ProTelX reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4.1. ProTelX shall ensure that:
(a) each delivery of the Goods is accompanied by a Delivery Note which shows the date of the Order, all 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 Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if ProTelX requires the Customer to return any packaging materials to ProTelX, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as ProTelX shall reasonably request. Returns of packaging materials shall be at ProTelX's expense.
4.2. ProTelX shall deliver the Goods to the location set out in the Order ("the Delivery Location"), and Delivery of the Goods shall be completed upon the Goods' arrival at the Delivery Location.
4.3. Without prejudice to clause 2.4, ProTelX 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 ProTelX with adequate delivery instructions or any other instructions that are relevant to the supply and delivery of the Goods.
4.4. If ProTelX 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. ProTelX 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 ProTelX with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5. Pursuant to clause 2.6, ProTelX may deliver the Goods by instalments, which shall be invoiced (by way of a Sales' Invoice) and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1. ProTelX warrants that on delivery, and for a period of 12 months from the date of delivery ("the Warranty Period"), the Goods shall:
(a) conform in all material respects with their description, subject to clause 3.2;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979; and
(d) be fit for any purpose held out by ProTelX.
5.2. The Customer shall inspect the Goods upon (or within 14 days of) delivery to ensure that the Goods correspond with the Order, and the Customer must notify ProTelX of all and any discrepancies as between the Goods and the Order within 14 days of delivery.
5.3. Subject to clause 5.4, if:
(a) the Customer gives notice in writing to ProTelX during the warranty period within 14 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) ProTelX is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by ProTelX) returns such Goods to ProTelX's place of business at the Customer's cost, ProTelX shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.4. ProTelX shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
(b) the defect arises because the Customer failed to follow ProTelX'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;
(c) the Customer alters or repairs such Goods without the written consent of ProTelX;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements (pursuant to clause 3.2).
5.5. In the event of a re-sale of some or all of the Goods by the Customer, the Customer agrees to adhere to the warranty procedure as set out in this clause 5.
5.6. Except as provided in this clause 5, ProTelX shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.7. 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.
5.8. These Terms shall apply to any repaired or replacement Goods supplied by ProTelX.
6.1. The risk in the Goods shall pass to the Customer on completion of delivery.
6.2. Title to the Goods shall not pass to the Customer until ProTelX receives payment in full (in cash or cleared funds) for the Goods and any other goods that ProTelX has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as ProTelX's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify ProTelX immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give ProTelX such information relating to the Goods as ProTelX may require from time to time.
6.4. Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before ProTelX receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as ProTelX's agent; and
(b) title to the Goods shall pass from ProTelX to the Customer immediately before the time at which resale by the Customer occurs.
6.5. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy ProTelX may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) ProTelX may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6.6. All Goods which are returned on the grounds that they are faulty or defective ("Returns") must be made pursuant to ProTelX's "Returns' Procedure": Returns must be recovered, collected or received by the Customer (in its capacity as the re-seller of the Goods), unless agreed otherwise as between ProTelX and the Customer. Once such Returns are recovered by the Customer, a formal request must be lodged by the Customer with ProTelX via the Portal. A ProTelX representative will then contact the Customer with further instructions. Goods returned pursuant to the Returns' Procedure after the expiry of 12 months from the date of Delivery will not be accepted for refund or replacement without ProTelX's prior written agreement and in such circumstances ProTelX reserves the right to apply a charge.
7.1. The price of the Goods shall be the price set out in the Order.
7.2. ProTelX 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:
(a) any factor beyond ProTelX's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give ProTelX adequate or accurate information or instructions.
7.3. The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer, if applicable, pursuant to clauses 2.8 to 2.10 inclusive.
7.4. The price of the Goods is exclusive of amounts in respect of value added tax ("VAT"). The Customer shall, on receipt of a valid VAT invoice from ProTelX, pay to ProTelX such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5. The Customer shall pay the Sales' Invoice pursuant to the payment terms set out on the Sales' Invoice, namely
(a) in full and in cleared funds upon receipt of the Sales' Invoice; or
(b) where the Customer has applied for and ProTelX has agreed to a credit account, in full and in cleared funds within 30 days of the payment date set out on the Sales' Invoice.
7.6. Payment shall be made to the bank account nominated in writing by ProTelX.
7.7. The time for payment of the Sales' Invoice is of the essence, unless the Customer has agreed with ProTelX in writing in advance to extend the deadline by which payment of the Sales' Invoice is to be made by the Customer. Such extensions can only be agreed by ProTelX and the Customer's account manager. If the Customer is not granted a credit account, then payment will be required in advance of Delivery by way of electronic bank transfer, cheque or credit/debit card. To receive a statement of account, the Customer's account manager should lodge a request with ProTelX's Accounts' department.
7.8. If the Customer fails to make any payment due to ProTelX under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above HSBC Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.9. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
7.10. ProTelX may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by ProTelX to the Customer.
8.1. If the Customer becomes subject to any of the events listed in clause 8.2, ProTelX may terminate the Contract with immediate effect
by giving written notice to the Customer.
8.2. For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being a company) 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 the Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(f) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer's financial position deteriorates to such an extent that in ProTelX's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3. Without limiting its other rights or remedies, ProTelX may suspend provision of the Goods under the Contract or any other contract between the Customer and ProTelX if the Customer becomes subject to any of the events listed in clause 8.2(a) to clause 8.2(l), or ProTelX 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.
8.4. On termination of the Contract for any reason the Customer shall immediately pay to ProTelX all of ProTelX's outstanding unpaid invoices and interest.
8.5. Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
8.6. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.1. Nothing in these Terms shall limit or exclude ProTelX's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for ProTelX to exclude or restrict liability.
9.2. Subject to clause 9.1:
(a) ProTelX shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) ProTelX's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breachbreach of statutory duty, or otherwise, shall in no circumstances exceed 30% of the price of the Goods.
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1. Assignment and other dealings:
(a) ProTelX may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, 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 ProTelX.
11.2. Policy for online re-sale of the Goods by the Customer (including but not limited to re-sales via Amazon and eBay) and related dealings:
(a) All Customers wishing to re-sell the Goods via the internet only (including but not limited to re-sales via Amazon and eBay) (collectively, "Online") must apply to ProTelX for an Online account in order to trade Online, and must meet criteria set by ProTelX. (b) Any Online sales made by the Customer without ProTelX's consent and agreement will constitute a material breach of these Terms.
(c) Any images featuring ProTelX and or the Goods can only be used with ProTelX's prior written consent.
(d) All branding, brand names, descriptions, barcodes, packaging and get-up is and remains the intellectual property of ProTelX, and can only be used with ProTelX's prior written consent.
(e) Customers with physical (that is, bricks and mortar) premises are permitted to sell the Goods online only via the Customer's own wholly-owned website. In such circumstances the Customer must notify ProTelX in writing in advance and, where applicable, all intellectual property rights in the Goods must be noted and attributed. The Customer is not permitted to do any other acts in relation to the Goods on or via any other website without the prior written permission and consent of ProTelX.
(f) An Online Customer must notify ProTelX of its website prior to listing the Goods Online.
(g) ProTelX may refuse any Order or terminate the Online account and/or the credit account of any Customer found to be selling Online by way of any third party website without its prior written consent, and for the avoidance of doubt will constitute a material breach of these Terms.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or other next working day delivery service, at 11.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one hour after the time and date of transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the 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 clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.5. Waiver: A waiver of any right or remedy under the Contract or pursuant to English law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
11.6. Third party rights: A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.7. Variation: Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by ProTelX.
11.8. Governing law: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
11.9. Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).