Jelly Communications Terms and Conditions of Sale
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.6.
Contract: the contract between the Supplier and the Customer for the supply of Equipment and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Equipment and/or Services from the Supplier.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 14.1.
Equipment: the Equipment (or any part of them) set out in the Order.
Equipment Specification: any specification for the Equipment, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world
Order: the Customer’s order for the supply of Equipment and/or Services, as set out overleaf.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification below.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: JELLY COMMUNICATIONS LIMITED registered in England and Wales with company number 05425907.
Supplier Materials: has the meaning set out in clause 8.1(e).
Third Party: any third party supplier of services to the Customer (either directly or indirectly) in connection with the Services, as set out in the Order.
Third Party Terms: the terms governing the supply of services by a Third Party to the Customer in connection with the Services, as set out in the Order.
1.2 Construction. In these Conditions, a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Equipment and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 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 the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Equipment or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions 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.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.
3.1 The Equipment are described in the Supplier’s catalogue or website as modified by any applicable Equipment Specification.
3.2 The Supplier reserves the right to amend the specification of the Equipment if required by any applicable statutory, regulatory or commercial requirements.
4. Delivery of Equipment
4.1 The Supplier shall ensure that:
(a) each delivery of the Equipment 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 Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Equipment remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Equipment to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Equipment are ready.
4.3 Delivery of the Equipment shall be completed on the Equipment’ arrival at the Delivery Location.
4.4 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
4.5 If the Supplier fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Equipment of similar description and quality in the cheapest market available, less the price of the Equipment. The Supplier shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide the Supplier with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment.
4.6 If 5 Business Days after the Supplier notified the Customer that the Equipment were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Equipment.
4.7 The Supplier may deliver the Equipment by instalments, which may be invoiced 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. Quality of Equipment
5.1 The Supplier warrants that on delivery the Equipment shall conform in all material respects with their description and any applicable Equipment Specification
5.2 Any defects in respect of the design, material and workmanship of the Equipment shall be subject to the Equipment manufacturers’ warranties in place from time to time.
5.3 Subject to clause 5.4, if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Equipment do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Equipment; and
(c) the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Equipment, or refund the price of the defective Equipment in full.
5.4 The Supplier shall not be liable for the Equipment’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Equipment after giving a notice in accordance with clause 5.3;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any drawing, design or Equipment Specification supplied by the Customer;
(d) the Customer alters or repairs such Equipment without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Equipment differ from their description as a result of changes made to ensure they comply with applicable statutory, commercial or regulatory standards.
5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Equipment’ failure to comply with the warranty set out in clause 5.1.
5.6 The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by the Supplier under clause 5.3.
6. Title and risk
6.1 The risk in the Equipment shall pass to the Customer on completion of delivery.
6.2 Title to the Equipment shall not pass to the Customer until the earlier of the Supplier receives payment in full (in cash or cleared funds) for the Equipment and any other Equipment that the Supplier has supplied to the Customer.
7. Supply of Services
7.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
7.5 Where aspects of the Services comprise services supplied by Third Parties, the Customer agrees to comply with such Third Party Terms (as set out in the Order), and agrees to indemnify the Supplier in respect of any breach by the Customer of such Third Party Terms.
8. Customer’s obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer) the Equipment Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(e) keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
8.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. Charges and payment
9.1 The price for Equipment shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery. The price of the Equipment is exclusive of all costs and charges of packaging, insurance, transport of the Equipment, which shall be paid by the Customer when it pays for the Equipment.
9.2 The charges for Services shall be on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Order;
(b) 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, but not limited to, 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.
9.3 The Supplier reserves the right to:
(a) increase its standard daily fee rates for the charges for the Services. The Supplier will give the Customer written notice of any such increase three months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within six weeks of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving four weeks’ written notice to the Customer; and
(b) increase the price of the Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Equipment.
9.4 In respect of Equipment, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on delivery of the service in arrears. In respect of third party services provided in the Suppliers name then the Supplier will invoice once the Third Party has invoiced the Supplier.
9.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within the agreed terms of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.
9.7 If the Customer fails to make any payment due to the Supplier 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 Bank of England’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.
9.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
10. Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
10.3 All Supplier Materials are the exclusive property of the Supplier.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract.
12. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Equipment and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Equipment Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1:
(a) the Supplier 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) the Supplier’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), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid by the Customer to the Supplier in the preceding 12 month period.
12.3 The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 and the terms implied by sections 3 to 5 of the Supply of Equipment and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 90 days’ written notice prior to the expiry of the contract for the services the Customer has taken.
13.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing to do so;
(b) the other party 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;
(c) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.4 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13.5 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14. Force majeure
14.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(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 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.