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Terms & Conditions
1 GENERAL
(a) The Company means Thermalheads.com.
(b) These Terms and Conditions govern the sale of all goods and service by the Company to any person, firm or company (“the Customer”) and shall apply notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other document of communication from the Customer.
(c) These Terms and Conditions shall supersede all earlier terms and conditions of the Company.
(d) If any of these Terms and Conditions is unenforceable it shall not affect the validity of the remainder of that term/condition or these Terms and Conditions as a whole.
2 DELIVERY AND TITLE
(a) The Customer acknowledges that delivery dates provided by the Company are estimates only and that the Company is not liable for failure to deliver on such dates.
(b) Delivery of the goods to the carrier shall constitute delivery to the Customer and title and risk of loss of loss shall thereupon pass to the Customer.
(c) The company shall be entitled to make partial deliveries or deliveries by instalments and these Terms and Conditions shall apply to each partial delivery.
3 FRUSTRATION ETC. (FORCE MAJEURE)
(a) If the Company is prevented at any time from performing any contractual obligation, or if any loss, damage or injury or delay in delivery is occasioned by or due to any cause beyond the Company’s control including (but without prejudice to the generality of the foregoing expression), the commission of any criminal act, shortage of goods, act of war (whether declared or not), civil commotion, accident, strikes or lock-outs, manmade disasters, Acts of God, acts or omissions of the Customer, or any restriction imposed by any local municipal or government authority (including Customs Authorities) whether British or foreign, the Company’s time for performance of any such obligation shall be extended for the time period of such delay or the Company may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to the Customer.
(b) If the contract is terminated in whole or in part in such circumstances the Customer shall be liable to pay the Company for any goods delivered or services rendered under each or any contract on a pro-rata basis.
4 PRICE
(a) Unless otherwise stated any prices quoted by the Company are:
(i) exclusive of value added tax and any other taxes;
(ii) exclusive of carriage, packing and insurance;
(iii) exclusive of any release certificates; and the Company shall have the right to charge extra in respect of the above items.
(b) Prices shall be as specified by the Company and shall be applicable for the period specified in the Company’s quote. If no period is specified, prices shall be applicable for thirty (30) days. Notwithstanding the forgoing, prices shall be subject to increase in the event of an increase in the Company’s costs or other circumstances beyond the Company’s reasonable control.
(c) Where the Customer does not adhere to agreed scheduled orders, the Company reserves the right to amend at it’s sole discretion, the price structure in accordance with the quantities delivered.
5 PAYMENT
(a) An invoice is payable without offset or deduction upon receipt but in any case not later than 30 days from date of invoice.
(b) The company reserves the right to suspend deliveries where payment is not received in accordance with paragraph 5(a) or in accordance with any alternative terms of payment agreed in writing.
(c) Where payment is not made in accordance with the terms of paragraph 5(a) hereof the Customer shall pay interest on any unpaid amounts, calculated at 3% per annum above Libor rate for the time being in force calculated on a daily basis.
(d) No cash or other discount is allowed unless agreed in writing.
(e) If the Company is able to deliver some items comprising the goods that are the subject of a contract but unable to deliver all such items due to causes beyond it’s control (including but not limited to the examples referred to in Condition 3 hereof) the Customer shall pay for such items delivered in accordance with these Terms and Conditions.
6 ORDERS
(a) First orders are accepted subject to one of the following conditions at the discretion of the Company:
(i) An initial Payment of 50% of the order value before goods are released OR
(ii) Payment in full before the goods are released OR
(iii) Payment of £25 to cover the cost of a credit check, results of which must be satisfactory before goods are released.
(b) All orders are subject to credit approval by the Company, which may, in its sole discretion at any time, change the terms of Customer’s credit and require payment in cash, bank wire transfer or by official bank cheque. If the Company believes that the Customer’s ability to make payments may be impaired, the Company may suspend delivery.
(c) The Customer agrees to send to the Company a written order in confirmation of any telephoned orders duly marked with any confirmation reference provided to properly identify the Customer and the goods ordered, otherwise the Company reserves the right not to process the order.
7 SOFTWARE
If an order includes software or other intellectual property, such software or other intellectual property is provided by the Company to the Customer subject to the copy right and user licence, the terms and conditions of which are set forth in the licence agreement accompanying such software or intellectual property. Nothing herein shall be construed to grant any rights or licence to use any software in any manner or for any purpose not expressly permitted by such licence agreement. Unless otherwise set for the in writing by an authorised signatory of the Company, The Company is not a the licensor and the Customer acquires the licence directly from the manufacturer or the manufacturer’s licensor.
8 DRAWINGS ETC.
(a) All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the sales literature, price lists, estimates of performance or other specifications provided by the Company are approximate only and shall not form part of the contract. In additions, drawings, technical documents issued either before or after the conclusion of the contract for the use or information of the Customer and such other information as may be supplied to the Customer by the Company including specifications shall not be copied, reproduced or communicated to any third party without the Company’s prior written consent.
(b) The Company reserves the right to modify its goods specifications from time to time.
9 COMPANY’S LIMITED WARRANTY
(a) The Company warrants to the Customer that upon delivery to Customer the goods purchased hereunder shall conform to the applicable manufacturer’s specifications for such goods and that any value-added work performed by the Company on such goods shall conform to the Customer’s specifications relating to such work. The company makes no other warranty, express or implied, with respect to the goods and services. In particular, the company makes no warranty respecting the merchantability of the goods or services or their suitability or fitness for any particular purpose or use or respecting infringement.
(b) If, on examination by the Company, it is found that the goods do not meet manufacturer’s specifications, or with respect to value-added work by the Company, it does not meet the Customer’s specifications, the Company’s liability will be limited to and the Company can elect to (i) refund the Customer’s purchase price for such goods (without interest), (ii) repair such goods, or (iii) replace such goods; provided however, that such goods must be returned to the Company, along with acceptable evidence of purchase, within thirty (30) days from date of invoice, transportation charges prepaid.
(c) The Company shall transfer to the Customer whatever transferable warranties and indemnities the Company receives from the manufacturer of the goods and services, including any transferable warranties and indemnities respecting patent infringement.
10 EXCLUSION OF LIABILITY
(a) Except where provided otherwise in these Terms and Conditions the Company shall be under no liability of whatsoever kind howsoever caused whether or not due to the negligence or wilful default of the Company or its servants or agents arising out of or in connection with the goods. All conditions, warranties or other terms, whether express or implied, statutory or otherwise, are hereby expressly excluded providing that nothing in this paragraph shall exclude or restrict any liability of the Company for the death or personal injury resulting from the negligence of the Company or its servants or agents.
(b) In any event the Company’s liability shall be limited to direct loss and shall not include indirect or consequential loss.
(c) The Customer’s recovery from the Company for any claim shall not exceed the Customer’s purchase price for the goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort,
(d) warranty or otherwise.
The Company shall not be liable for the loss of or damage to software programs during repair or upgrade of any goods whether or not the same are under warranty.
11 RETURNED GOODS AND CANCELLATIONS
(a) No return of goods shall be accepted by the Company without a Return Material Authorisation (“RMA”) Number, which may be issued by the Company in its sole discretion. A request to return goods must be made within 10 days of the date of the invoice. Returned goods must be in original manufacturer’s shipping cartons complete with all packing materials. All goods for return shall be returned freight prepaid in the manner specified in the RMA. If returned goods are claimed to be defective, a complete description of the defect must be included with the returned goods. If the Company consents to a return or cancellation of goods, it reserves the right to make return or cancellation charges, including those charges specified in the RMA.
(b) Notwithstanding any provision of these Terms and Conditions to the contrary, orders for special, custom, value-added and other non-standard goods, including goods to be assembled in kit form, goods which have been tested, assembled or integrated for the Customer, work-in-process and goods otherwise identified by the Company as non-cancellable and non-returnable shall be non-cancellable and non-returnable. Goods not eligible for return shall be returned to the Customer, freight collect.
12 COPYRIGHT, PATENTS, TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS
(a) The Customer acknowledges that rights in respect of trademarks, trade names, copyrights, patents and other intellectual property rights connected with the goods do not pass to the Customer, unless otherwise specifically authorised.
(b) The Customer agrees to indemnify the Company against all claims, damages, costs (including legal costs calculated on an indemnity basis) made by any person or company which the Company may incur, either as a result of work done in accordance with the Customer’s specifications or for the infringement of any intellectual property rights resulting from such customisation.
13 USE OF PRODUCTS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER APPLICATIONS
Goods sold by the Company are not designed, intended or authorised for use in life support life sustaining, nuclear, or other applications in which the failure of such goods could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If the Customer uses or sells the goods for use in any such applications: (i) the Customer acknowledges that such use or sale is at the Customer’s sole risk; (ii) the Customer agrees that Company and the manufacturer of the goods are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) the Customer agrees to indemnify, defend and hold the Company and the manufacturer of the goods harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
14 DATA PROTECTION
The Customer hereby consent to the Company receiving data, including personal data about the Customer and its business with the Company including, but not limited to information about the Customer, its authorised personnel, business situation, turnover, planned turnover with the Company, the credit line and the Customer’s liabilities towards the Company and to the Company processing that data for the purposes of itself performing or observing the performance by the Customer. The Customer hereby gives its explicit consent to the sharing of such personal data by the Company with the Company’s associated companies and in particular, agree to the transfer of such information to employees of the Company in Europe/ Middle East/Africa, United Kingdom and United States. For purpose of centralisation the Customer acknowledges and agrees that the received data may be transferred to a data processing centre in the US. For the purposes of this clause “associated companies” shall mean any company belonging to the Thermalheads.com Group of companies.
15 SUB-CONTRACTING
The Company reserves the right to sub-contract any part of any work or supply of any goods or services.
16 CONSTRUCTION AND USE
The Company shall not be responsible for adapting or modifying any goods to conform to statutory requirements not current at the time of the acceptance or order.
17 THIRD PARTY CLAIMS
The contract or contracts to which these Terms and Conditions apply is between the Customer and the Company only. No third party shall acquire any rights against the Company and the Company shall have no liability to any third party arising out of or in connection with any contract. All rights under The Contracts (Rights of Third Parties) Act 1999 are expressly excluded. Furthermore the Customer shall indemnify the Company against all actions, claims or demands by third parties in tort or otherwise arising directly or indirectly in connection with faults or defects in the goods (or the use of the goods) or the services provided.
18 ASSIGNMENT
These Terms and Conditions may be assigned in whole or in part by the Company without the prior written consent of the Customer. The Customer shall not assign or transfer or purport to assign or transfer these Terms and Conditions or the benefit thereof to any other person, without the written consent of the Company.
19 HEADINGS
The headings of these Terms and Conditions are for convenience only and shall have no effect on the interpretation thereof.
20 WAIVER
The Company’s failure to insist on any occasion upon the performance of these Terms and Condition shall not act as a waiver of such breach by the Customer or acceptance of any variation of these Terms and Conditions.
21 NOTICE
Any notice required in these Terms and Conditions shall be in writing and be sent by first class prepaid registered or recorded delivery post addressed to the Company’s or the Customer’s registered office or given by facsimile transmission to the last known facsimile number, in which case the transmission record has to reflect the receiving number’s acknowledgement.
22 TERMINATION
The Company shall be entitled by notice in writing summarily to terminate any contract without prejudice to any claim or right the Company may otherwise make or exercise where:
(a) the Customer is in breach of any term, condition or provision of any contract and/or these Terms and Conditions or as set out in law;
(b) the Customer (i) has a petition for its winding-up presented; or (ii) has an administration order made against it; or (iii) passes a resolution for voluntary winding-up (other than for the purpose of a bona fide amalgamation or reconstruction); or (iv) enters into an arrangement or composition with its creditors; or (v) has a receiver or manager appointed over all or any of its assets.
(c) any distress is levied upon any of the Customer’s property.
23 JURISDICTION
These Terms and Conditions shall be governed by and construed in accordance with English law and the Courts of England shall have jurisdiction to hear all disputes arising in connection with these Terms and Conditions.
Thermalheads.com is a division of Maxim Computer Services Ltd |
