360 Solutions (UK) Ltd

Terms and conditions for the supply of telephone systems

1. Definitions

     In these Conditions the following expressions have the following meanings:

“360 Solutions” means 360 Solutions (UK) Limited, company registration number 4629543;

“these Conditions” means the terms and conditions of sale set out herein;

"Contract" means any contract between 360 Solutions and the Customer for the supply of Equipment and/or provision of Services, incorporating these Conditions;

“the Customer” means the person , firm or company purchasing or agreeing to purchase Goods or Services from 360 Solutions;

“Equipment” shall mean the telephone system and all equipment, spare parts, and any other goods to be provided to the Customer by 360 Solutions under the Contract;

"Services" means services in respect of installation and training in respect of the Equipment, or any other services which 360 Solutions agrees to provide under the Contract.

1.2        The headings in these Conditions are for the purpose of information only and shall not be construed as forming part of the Contract.

1. Basis of the Contract

 

1. All Contracts by which 360 Solutions agrees to supply Equipment and/or Services to the Customer shall be subject only to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any order form or otherwise).

1. Any brochure in which these Conditions are incorporated shall constitute an invitation to treat by 360 Solutions, and each order by the Customer for the Equipment and/or Services shall be deemed to be an offer by the Customer to purchase the Equipment and/or Services subject to these Conditions.

 

1. 360 Solutions may in its discretion accept or reject any order.  A binding contract shall only be made by 360 Solutions accepting an order in writing or by telephone, or (if 360 Solutions does not expressly reject an order) a legally binding contract shall be deemed to be made 10 days after the placing of the order.

1. No cancellation of any order by the Customer (after it has been accepted pursuant to Condition 2.3) shall be valid unless made in writing and accepted in writing by 360 Solutions.

 

1. No variation of these Conditions is permitted unless expressly accepted in writing by a Director of 360 Solutions.

3.         The Equipment

3.1        All descriptions, drawings & particulars relating to the Equipment in any catalogues, leaflets, brochures or other advertising material are for illustrative purposes and do not form part of the Contract.

3.2        All representations as to the performance or use of the Equipment are based on information supplied by the manufacturer of the Equipment and relate to their performance in normal conditions and when used correctly.

3.3        Unless otherwise expressly agreed, Equipment supplied will be in accordance with manufacturer’s normal designs and specifications current at the date of manufacture or delivery, and 360 Solutions reserves the right without liability to the Customer to make any changes in the specification of the Equipment which do not materially affect the quality or performance of the Equipment.

4.         Delivery, installation and risk

1. Time for delivery shall not be of the essence. The agreed dates for delivery of the Equipment or performance of the Services are estimates only and a failure by 360 Solutions to comply with them shall not be a breach of the Contract.

 

1. 360 and/or its duly authorised representatives will normally carry out installation work at the Customer's premises by appointment with the Customer during normal working hours.  At the Customer's request, 360 may agree to carry out installation work outside normal working hours subject to the Customer paying a reasonable additional charge which will be notified by 360 to the Customer.

1. The Equipment shall be at the Customer's risk from the time of delivery or, if the Customer has requested to arrange for collection of the Equipment, from the date when 360 Solutions notifies the Customer that the Equipment is ready for collection.

 

1. It is the Customer's responsibility, at its own expense:

1.       to obtain and make available clear and unobstructed access to the installation site to enable the installation of the Equipment to proceed from any agreed date;

 

1.       to make available mains electric power supply, conduits, sockets and such like, together with any peripheral equipment not included in the Equipment, to enable the installation of the Equipment to proceed from any agreed date;

1.       to obtain all licences, permits, way leaves, easements, and other third party consents as are necessary for the installation of the Equipment or its connection to the relevant telecommunications network, by the agreed date for the commencement of the installation; and

 

1.       to provide to 360 Solutions or its agents or sub-contractors all necessary information and co-operation to enable installation of the Equipment to proceed from the agreed date.

4.5        360 Solutions shall not be liable for any loss or damage resulting from the breach by the Customer of its obligations under Condition 4.4.

4.6        The Customer is required to inspect the Equipment upon delivery and to notify 360 Solutions of any defects or complaints within 7 days, or (where 360 Solutions is to install the Equipment as part of the Services) to notify 360 Solutions of any defects or complaints within 7 days of installation of the Equipment, failing which the Customer shall be deemed to have accepted the Equipment and shall be liable to pay the full price.

5.         Property in the Equipment

5.1        Notwithstanding that risk in the Equipment has passed to the Customer in accordance with Condition 4.3, the Equipment shall remain the sole and absolute property of 360 Solutions, and title to and legal and equitable ownership of the Equipment shall not pass to the Customer, until payment is received by 360 Solutions of all monies due from the Customer to 360 Solutions under any Contract.

5.2        Until ownership of the Equipment has passed to the Customer, the Customer shall:

(a)        hold the Equipment on a fiduciary basis as 360 Solutions' bailee;

1.       not sell, lease, charge, assign by way of security or otherwise deal in the Equipment, but may use the Equipment in the ordinary course of its business;

 

1.       keep the Equipment in good condition and store and use it in all respects in accordance with the manufacturer's guidelines;

1.       not destroy, deface, remove or obscure any labels, badges, serial numbers or other mans of identification of the Equipment and ensure that the Equipment is clearly identifiable as belonging to 360 Solutions; and

 

1.       insure the Equipment for its full replacement value with a reputable insurance company and shall upon request provide a copy of the insurance certificate to 360 Solutions.

5.3        The Customer's right to possession of the Equipment shall terminate immediately if:
(a)        the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the grant­ing of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer, or the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(b)        any payment due to 360 Solutions by the Customer under the Contract is overdue by 30 days or the Customer fails to observe or perform any of his/its other obligations under the Contract or any other contract between 360 Solutions and the Customer; or
(c)        the Customer ceases to trade; or
(d)        the Customer encumbers or in any way charges any of the Equipment.
5.4        360 Solutions shall be entitled to recover payment for the Equipment and Services notwithstanding that ownership of any of the Equipment has not passed from 360 Solutions.

1. The Customer grants 360 Solutions, its agents and employees an irrevocable licence at any time to enter upon any premises where the Equipment is stored or where it is reasonably thought to be stored, in order to inspect it, or, where the Customer's right to possession has terminated, to recover it.

 

1. Without prejudice to any other rights or remedies available to it, where the Customer's right to possession of the Equipment has terminated, 360 Solutions shall be entitled to stop any Equipment in transit and/or to cancel any further deliveries.

1. On termination of the Contract, howsoever caused, 360 Solutions' (but not the Customer's) rights contained in this Condition 5 shall remain in effect.

 

6.         Price and Payment

1. Unless otherwise expressly agreed, the price for the Equipment and Services shall be as shown in the current price list of 360 Solutions which unless stated otherwise is exclusive of Value Added Tax (which will be payable by the Customer in addition to the price, at the applicable rate) and the cost of packing and carriage, which will be charged at 360 Solutions' normal rates.

 

1. Unless otherwise expressly agreed, the price is payable on delivery of the Equipment with invoice.  If the Customer does not take delivery when requested, the price is payable within 7 days after 360 Solutions has requested the Customer to take delivery, together with a 15% handling charge for the care and storage of the Equipment.

1. When the payment terms are otherwise expressly agreed and refer to “system go live”, this is defined for this purpose as telephone calls passing through the Equipment, ie telephone calls are being made and received by the Equipment.

 

1. Time for payment is of the essence.

1. If payment is not received in full within 30 days from the date of invoice, 360 Solutions shall be entitled (a) to require the Customer to pay 2.5% interest per month from the date of invoice compounded monthly until payment is received in full, and (b) to charge (in addition to interest and any legal costs ordered by the court and without prejudice to any other rights or remedies available to 360 Solutions) the sum of £100 (exclusive of any VAT) as a contribution to the administrative costs incurred by 360 Solutions in taking steps to secure payment.

 

1. Unless otherwise stated, all payments are to be made in Sterling to "360 Solutions (UK) Limited" at the address as stated on the invoice.

1. Where the Contract provides for Equipment to be delivered by instalments, each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.  Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

6.8        The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by 360 Solutions to the Customer.

7.         Warranty

1. The Customer acknowledges that 360 Solutions is not the manufacturer of the Equipment, and that the Customer shall only be entitled to the benefit of any warranty or guarantee that is given by the manufacturer to 360 Solutions.  360 Solutions shall use all reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given to it by the manufacturer, provided that the Customer notifies 360 Solutions promptly of any defect in the Equipment and, if requested by 360 Solutions, arranges for the prompt return to 360 Solutions of the defective Equipment at the Customer’s risk and expense.

 

1. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. Nothing in this Condition 7.2 shall exclude the undertakings implied by section 12 of the Sale of Goods Act 1979.

8.         Liability of 360 Solutions

8.1        The following provisions set out the entire liability of 360 Solutions (including liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a)        any breach of its contractual obligations under the Contract; and

(b)        any representation, statement or tortious act or omission including negligence (but excluding any of the same made fraudulently) arising under or in connection with the Contract.

1. 360 Solutions does not exclude liability in respect of death or personal injury which results from the negligence of 360 Solutions, its employees, agents or subcontractors.

 

8.3     Subject to Condition 8.2:
(a)        360 Solutions' total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise:
(i)         in respect of any tangible property damage shall be limited to £●; and
(ii)        arising otherwise in connection with the performance or contemplated performance of the Contract shall be limited to the invoice value of the Equipment and Services in respect of which the claim is made; and
(b)        360 Solutions shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business or contracts, loss of data, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract; and
(c)        360 Solutions shall not be liable to the Customer for any losses or damage, whether direct, indirect or consequential, arising out of any toll fraud, hacking or similar practice, or any unauthorised or unlawful use of the Equipment (or any peripheral equipment to which the Equipment is connected), whether such practice or use is negligent, fraudulent or otherwise and whether carried out by any person to whom the Buyer has granted access to the Equipment (including employees, sub-contractors or agents of the Buyer) or by any third party gaining unauthorised access to the Equipment. 

1.       To be valid, any claim against 360 Solutions arising out of the Contract must be brought within 2 years of the date of invoice.  This limitation is without prejudice to any rights of the Customer which cannot by law be limited in this way.

 

9.         Copyright

9.1        The operating manuals and other documentation provided by 360 Solutions under the Contract is the copyright of 360 Solutions or the manufacturer, and the Customer shall take all such steps as shall be necessary to protect such copyright and any confidential information in such documentation.

10.       Force Majeure

10.1      360 Solutions shall not be liable to the Customer for any failure or delay in performing its obligations under any Contract due to any circumstances beyond its reasonable control (including, without limitation, strikes, lock-outs, industrial disputes, riots, civil disturbances, war or warlike activity, the act or omission of the government or highways authorities, embargoes, fire, explosion, flood, natural causes, disease, epidemic or act of terrorism, failure of power supplies, delays caused by British Telecommunications Plc or any other telecommunication operators, or delays caused by manufacture of the Equipment) and in such event 360 Solutions may elect by written notice to cancel any affected Contract or elect that the time for performance shall be extended until such time as 360 Solutions can reasonably effect performance.

11.       Waiver

If the Customer shall be in breach of any of these Conditions then failure by 360 Solutions to require the Customer to rectify the same shall not create any assumption that the rights or remedies of 360 Solutions in respect of such breach or any other breach have been waived.

12.       Severability

12.1      If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

13.       Third Party Rights

13.1      The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

14.      Assignment
14.1      360 Solutions may assign the Contract or any part of it to any person, firm or company.
14.2      The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of 360 Solutions.
15.       Notices

15.1      All demands, notices and other communications shall be in writing and addressed:

(a)        to 360 Solutions at its address shown in invoices delivered by it; or

(b)        to the Customer at the address given by it for delivery of invoices,

(or to such other address as may be notified by one party to the other in writing pursuant to this Condition)

and shall be sent by first class postage pre-paid (in which case they will be deemed to be duly given 48 hours after being posted) or delivered by hand (in which case they shall be deemed to be duly given at the time of delivery) or by fax (in which case they shall be deemed to be duly given when the sender shall receive the answer back of the person to whom it was sent).

16.       Law and Jurisdiction

The Contract shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts