1. Definitions and General
1.1 In these terms and conditions:
"PULSE DESIGN LTD." means PULSE DESIGN LTD., 55 Ivy LAne, South Bersted, Bognor Regis, PO228XA
"Agreement" means the agreement however made for the supply of Goods and or Services by PULSE DESIGN LTD. to the Customer
"Customer" means the party to whom PULSE DESIGN LTD. has agreed to provide the Goods and Service including its employees agents and servants
"Goods" means any equipment purchased by the Customer including hardware, software and any other material supplied by PULSE DESIGN LTD.
"Force Majeure" shall include without prejudice to the generality of the expression act of God war, riots insurrection, governmental regulations, legal restrictions embargoes strikes labour disputes shortages of materials fire floods tempest or any other cause or event outside of the control of PULSE DESIGN LTD. howsoever caused or arising
"Service" means the Service supplied or to be supplied by PULSE DESIGN LTD. to the Customer under a Hardware Maintenance Agreement
"Subsidiary" means a subsidiary as defined by s736 of the Companies Act 1985 or any company where the members of PULSE DESIGN LTD. hold not less than twenty per centum of the issued and fully paid shares
2. Terms and Conditions
2.1 These Terms and Conditions of Sale shall be incorporated into all Contracts of Sale made by PULSE DESIGN LTD. for the sale of any Goods. Any printed or other terms or conditions used by the Customer are excluded and PULSE DESIGN LTD. shall not be bound by any terms or conditions in the Customer's order. If the Customer's order contains any terms and conditions then these Terms and Conditions of Sale shall take precedence over such terms and conditions in the Customer's order which shall be deemed deleted without notice.
2.2 The employees of PULSE DESIGN LTD. are not authorised to make oral representations as to the description quality or fitness for any particular purpose of the Goods supplied under the Agreement. If a representation is made or an opinion expressed orally which materially affects the Customer's decision to purchase the Goods, the Customer must ensure that any such details are confirmed in writing by a Director of PULSE DESIGN LTD. so as to form part of this Agreement otherwise no liability can be accepted.
2.3 All descriptions and other information contained in sales literature advertisements and quotations may include information received from PULSE DESIGN LTD.'s suppliers and agents and PULSE DESIGN LTD. cannot be held responsible for any inaccuracy in their information passed on in good faith.
2.4 Any typographical clerical or other error or omission in any sales literature advertisements quotations price lists acceptance of offer invoices delivery note or any other document or information issued by PULSE DESIGN LTD. shall be subject to correction without any liability on the part of PULSE DESIGN LTD.
2.5 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Customer's acceptance of these Conditions.
3.1 PULSE DESIGN LTD.'s sales literature, price lists, other advertising literature or other material do not constitute an offer unless expressed in a fixed quotation open for a specific period and PULSE DESIGN LTD. reserves the right to withdraw or revise the same at any time prior to the Agreement.
3.2 Unless otherwise expressly provided the price is exclusive of:-
3.2.1 Maintenance, installation, training or any other expense
3.2.2 Value Added Tax and any other United Kingdom tax or duty payable.
3.2.3 Customs and Excise duties, import or export duties and all other taxes, tariffs and surcharges of any nature imposed or levied in any country or territory and the value of any such items shall be added to the Price paid by the Customer with the costs referred to in subclause 3.2.1 of this clause charged at PULSE DESIGN LTD.'s standard charges from time to time in force.
3.3 Where the Goods are not paid for in full at the time the Customer enters into the Agreement or unless expressly provided in writing payment for the Goods shall be due in full without set-off or deduction within seven days of PULSE DESIGN LTD.'s invoice.
3.4 Where payment becomes overdue (and without prejudice to the rights which PULSE DESIGN LTD. may have) PULSE DESIGN LTD. shall be entitled to charge interest at the rate of 3% per month over the Base Rate of HSBC Bank Plc from time to time in force on a daily basis to be liable from the due date for payment thereof until receipt by PULSE DESIGN LTD. of the full amount whether before or after Judgment.
3.5 If it is agreed that the Price shall be payable by instalments, in the event of a failure by the Customer to pay any instalment on the due date the whole of the balance of the price shall become due and payable forthwith.
3.6 In the case of death, permanent incapacity, bankruptcy or insolvency of the Customer or when the Customer is a limited company in the case of a liquidation or the appointment of a receiver, the outstanding balance of the purchase price of all goods invoiced and for delivery by PULSE DESIGN LTD. to the Customer prior to the date of the relevant event shall immediately become due and payable from the Customer to PULSE DESIGN LTD.
3.7 On the happening of any events in the subclauses 3.5 or 3.6 above PULSE DESIGN LTD. (in addition and without prejudice to its other rights referred to in this clause) will have the right to cancel every contract made with the Customer and/or to suspend or continue delivery of the goods at PULSE DESIGN LTD.'s option without prejudice to PULSE DESIGN LTD.'s right to recover damages for any loss sustained by them.
3.8 Any discounts agreed by PULSE DESIGN LTD. and the Customer shall cease to apply if there is any default by the Customer of the specific terms agreed. The Customer accepts that any such default on his part or in the event of collection being ordered by a Court, the full amount of the contract price will be payable by the Customer to PULSE DESIGN LTD.
4. Availability and Delivery
4.1 Acceptance and completion of an order is subject always to the goods which have been ordered being available and PULSE DESIGN LTD. shall be under no liability for delay or non-performance caused either by the goods being not available or by any circumstances beyond PULSE DESIGN LTD.'s control.
4.2 Time of delivery of the goods is not to be the essence of any Agreement. Any date for delivery given by PULSE DESIGN LTD. is the best estimate that can be made and PULSE DESIGN LTD. shall not be liable for any loss or damage (whether direct or consequential) caused by delivery being after the quoted date. Any delay in delivery cannot be used by the Customer as grounds for the cancellation of the Agreement.
4.3 Where goods contracted for are delivered in instalments each delivery shall be deemed to be the subject of a separate enforceable Agreement.
5.1 Goods the subject of any Agreement by PULSE DESIGN LTD. to sell shall be at the risk of the intending Customer as soon as they are delivered by PULSE DESIGN LTD. to the Customer at PULSE DESIGN LTD.'s premises the Customer's vehicles or premises or otherwise to the Customer's order.
5.2 The intending Customer acknowledges that the Customer is in possession of goods solely as bailee for PULSE DESIGN LTD. until such time as the full Price thereof is paid to PULSE DESIGN LTD. and until the price is paid to PULSE DESIGN LTD. in full the property in the Goods shall remain the sole and absolute property of PULSE DESIGN LTD. as legal and equitable owner.
5.3 Until such a time as the intending Customer becomes the owner of the goods the Customer will store them on his premises separately from the Customer's own goods or those of any other person and in a manner which makes them readily identifiable as the goods of PULSE DESIGN LTD.
5.4 The intending Customer's right to possession of the goods shall cease if he, not being a company, commits an available act of bankruptcy or if he, being a company, does anything or fails to do anything which would entitle any person to present a Petition for winding-up. PULSE DESIGN LTD. may for the purpose of recovery of its goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
5.5 If goods the property of PULSE DESIGN LTD. are admixed with goods the property of the intending Customer or are processed with or incorporated therein, the produce thereof shall become and/or shall be deemed to be the sole and exclusive property of PULSE DESIGN LTD.. If goods the property of PULSE DESIGN LTD. are admixed with goods the property of any other person other than the intending Customer or are processed with or incorporated therein, the produce thereof shall become or shall be deemed to be owned in common with that other person.
5.6 The intending Customer shall be at liberty to agree to sell on any product produced from or with PULSE DESIGN LTD.'s goods on the express condition that such an agreement to sell shall take place as agents and bailees for PULSE DESIGN LTD. whether the intending buyer sell on his own account or not and that the entire proceeds therefore are held in trust for PULSE DESIGN LTD. and are not mingled with any other monies and shall at all times be identifiable as PULSE DESIGN LTD.'s monies.
5.7 At any time after default by the Customer in paying for goods supplied on a demand by PULSE DESIGN LTD. any goods which PULSE DESIGN LTD. has not received payment in full shall be returned to PULSE DESIGN LTD.. The Customer hereby gives a licence to PULSE DESIGN LTD. and its employees agents servants and suppliers to enter on to any premises of the Customer for the purpose of removing any goods in such event.
The Customer shall not assign his interest in this Agreement
No waiver or modification of the Terms of this Agreement shall be binding upon PULSE DESIGN LTD. unless made in writing and signed by a Director of PULSE DESIGN LTD.
8. Force Majeure
If performance of PULSE DESIGN LTD. is delayed or hindered by circumstances outside its control or amounting to Force Majeure as defined in the Agreement the following provisions shall apply.
8.1 PULSE DESIGN LTD. will as soon as reasonably practicable give the Customer notice of the reasons of the delay or hindrance and failing to give such notice will not prevent PULSE DESIGN LTD. relying on the remaining provisions of this clause and PULSE DESIGN LTD. will incur no liability for failure to give such notice.
8.2 PULSE DESIGN LTD.'s duty to inform shall be suspended for as long as the circumstances amounting to Force Majeure continue and the time for performance of PULSE DESIGN LTD.'s obligations shall be extended by a period equal to the duration of those circumstances.
9. Faulty Goods and Defects
9.1 PULSE DESIGN LTD. will only supply and use materials and goods within the scope of published specifications from appropriate manufacturers and suppliers but the Goods are supplied subject to any conditions of sale relating thereto by the relevant manufacturer or supplier. Where any materials or goods being faulty PULSE DESIGN LTD.'s liability in respect of such faults will be limited to such amount (if any) as it may be able to recover from the manufacturer or supplier within a period of one year from the date of purchase of the Goods from PULSE DESIGN LTD. by the Customer unless otherwise expressly provided in writing by PULSE DESIGN LTD.
9.2 PULSE DESIGN LTD. will repair the Goods if they become defective within one year of purchase and the repair will include the supply of labour parts and materials provided the Customer at his cost returns the Goods to PULSE DESIGN LTD.'s premises but where such defects arise and are notified to PULSE DESIGN LTD. more than one year but less than three years from the date of purchase PULSE DESIGN LTD. will where the Customer returns the Goods at his cost repair the Good provided the cost of the parts and materials are paid by the Customer at the price set out in PULSE DESIGN LTD.'s retail price list in force at the date of completion of repairs. Following repair PULSE DESIGN LTD. shall return the Goods to the Customer and where Goods are delivered to mainland UK the cost of delivery shall be borne by PULSE DESIGN LTD.
9.3 Save as expressly provided in the Agreement no statutory or other warranty condition description or representation of any kind whatsoever on the part of PULSE DESIGN LTD. including (but not limited to) any such as to the merchantability or fitness for any purpose of the goods supplied under the Service or the Service is given or to be implied by the Agreement nor is any such warranty description condition or representation to be taken to have been given or implied from anything said or written in negotiations between PULSE DESIGN LTD. and the Customer or their respective representatives prior to this Agreement.
9.4 Save as aforesaid PULSE DESIGN LTD. shall be under no liability whatsoever to the Customer howsoever arising including but not limited to liability arising from PULSE DESIGN LTD. negligence or that or any person for whom PULSE DESIGN LTD. is vicariously liable.
9.5 PULSE DESIGN LTD. shall have no liability for destruction or damage to the Customer's data howsoever arising including defects in the Goods and for repair or Service undertaken by PULSE DESIGN LTD.
10.1 The Customer agrees to indemnify PULSE DESIGN LTD. against any damages losses costs claims or expenses incurred by PULSE DESIGN LTD. in respect of any claim brought against PULSE DESIGN LTD. by any third party for
10.1.1 any loss injury or damage wholly or partly caused by the Goods or its use
10.1.2 any loss injury or damage in any way connected with the performance of this Agreement
11. Intellectual Property
The Customer is responsible for ensuring that the software is suited to the Customers intended purpose notwithstanding any information which may have been given to the Customer by PULSE DESIGN LTD. in connection with any software purchased by the Customer for use with the Goods. It is the responsibility of the Customer to ensure that the terms of any licence required to operate the software are satisfactory and the purchase and use thereof by the Customer is subject to the terms and conditions (if any) of the software supplier or any party who has any property rights attaching thereto.
12. Export Limitation
Having regard to the current statutory or other United Kingdom government regulations in force from time to time and in the case of products manufactured in the United States of America to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to PULSE DESIGN LTD. of an ultimate destination for any products, the Customer will not export or re-export directly any products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
13. Insolvency of CustomerInsolvency of Customer
13.1 This clauses applies where:
13.1.1 The Customer makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction)
13.1.2 An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer
13.1.3 The Customer ceases or threatens to cease to carry on business
13.1.4 PULSE DESIGN LTD. reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notified the Customer accordingly
13.2 If this clause applies then without prejudice to any other right or remedy available to the Customer PULSE DESIGN LTD. shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable that despite any previous arrangement or agreement to the contrary.
In the event that any of these Conditions or any part of any of them shall be held to be invalid or unenforceable, such invalidity or unenforceability of such condition or part thereof shall not affect the validity and enforceability of all remaining Conditions and parts of Conditions.
15.1 Where the Goods include software and the Customer has been furnished with the developer's software licence, the Customer shall once having opened the packaging in which the software and licence is delivered be liable for payment in full to PULSE DESIGN LTD.
15.2 In the absence of the developer's software licence being furnished, the Customer shall accept a non-exclusive, non-transferable licence to use the software as provided in these Conditions and subject to the further provisions of Condition 15.3 and 15.4
15.3 The Customer shall not copy (other than for normal equipment operation), reproduce, translate, adapt, vary or modify the software or communicate any part of it to a third party without the prior written consent of PULSE DESIGN LTD.
15.4 The licence granted by Condition 15.2 shall continue until or unless:
15.4.1 either party gives to the other one month's prior written notice of termination on or before the expiry of which the Buyer shall return or destroy the software as PULSE DESIGN LTD. shall direct which notice may only be given by PULSE DESIGN LTD. if the continued use or possession of the Software by the Customer infringes the developer's third party rights or if PULSE DESIGN LTD. is required to give notice by law
15.4.2 PULSE DESIGN LTD. terminates the licence immediately if the Customer fails or has failed to comply with any term of condition of the Agreement including (without limitation) breach of copyright, patent or confidentiality.
16.1 The Customer represents and warrants that it is duly authorised and empowered to enter into this Agreement and that such authority shall continue during the term of this Agreement.
16.2 This Agreement represents the entire Agreement between the parties. Each party warrants that no representation has been made which had induced the other to enter into this Agreement.
16.3 Side headings are for convenience only and shall not affect the construction of the conditions of this Agreement.
16.4 No failure, delay, relaxation or indulgence on the part of either party in exercising any power or right conferred upon such party in this Agreement shall operate as a waiver of such power or right, nor shall any single or partial exercise of any such power or right preclude any other further exercise of any other power or right.
16.5 This Agreement shall be governed by the law of England and the Customer hereby submits to the non-exclusive jurisdictions of English Courts.
16.6 Any notice given under this Agreement by either party to the other must be in writing and may be effected by personal delivery, fax or registered mail postage and shall in the case of fax be deemed to be received on the same date as it was sent and in the case of postage within 48 hours after the date of posting. Notices sent by post shall be sent to the addresses of the parties set out overleaf or to another address notified in writing to the other for such purpose after the date of this Agreement.
17 Distance selling regulations
17.1 Under the Distance Selling Regulations the customer has the right to cancel the order for any item purchased and claim a full refund for the items returned. This right does not apply in the case of software where the seal has been broken. To cancel your order you must notify PULSE DESIGN LTD. as required in Clause 17.2 within seven working days following the day of delivery. You must return the product to us as required by these Terms but if you do not or if you return the product at our expense we may charge you the reasonable costs of returning a product except in the case of cancellation of substitute products. The costs of delivery are not refundable.
17.2 Should you wish to exercise your rights under the Distance Selling Regulations your order may only be cancelled in writing, by letter, fax or by e-mail. Telephone cancellations cannot be accepted.
17.3 The goods must be returned in an unused and re-saleable condition. You are responsible for the cost of safe carriage back to us. The product should be packed in its original packaging. It is essential that there is no damage to any part of packaging. Care must be taken when packing products for transit. You are advised to arrange for adequate insurance to cover the product during its return journey.
17.4 The product should be returned within seven working days from the date we receive your cancellation. If you are unable to return the product to us within seven working days you must contact us to arrange a collection that will be at your cost.
17.5 You may cancel Services in the same way, within seven days of purchase, unless the services begin sooner. The Distance Selling Regulations do not apply to financial and insurance services.
17.6 Software can only be returned if the seal on the product is completely intact. PULSE DESIGN LTD. will not refund for any software when the licence has been activated or agreed by the customer. The only exception to this is if the software is faulty or misdescribed. Should this be the case, please contact PULSE DESIGN LTD.