These Terms and Conditions will apply to the purchase of Hardware, Software, Third Party Branded Services, and Vohkus Skuable Services (Collectively, "Product") sold by Vohkus Limited a company registered in England and Wales under number 04142508 whose registered office is at Centurion House, 12 Barnes Wallis Road, Segensworth, Fareham, PO15 5TT.
These Terms and Conditions will be deemed to have been accepted by the customer when they accept them or the quotation or from the date of any delivery of products (which ever happens earlier) and will constitute the entire agreement between Vohkus and the customer.
These Terms and Conditions and the quotation (together, the contract) apply to the purchase and sale of any products between Vohkus and the customer, to the exclusion of any other terms that the customer tries to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
“Customer” means the person or firm who purchases the Products from Vohkus.
“Conditions” means these terms and conditions of sale.
“Contract” means any contract between Vohkus and the Customer for the sale and/or supply of Products to which these Conditions apply, comprising an Order Acknowledgement, these Conditions and any applicable Special Conditions.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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 Acknowledgement” means Vohkus’ written acceptance of an order, signed by an authorised representative of Vohkus, in the form of an order acknowledgement, whether delivered to the Customer by email or otherwise.
“Products” means goods or services agreed in the Contract to be supplied to the Customer by Vohkus.
“Special Conditions” means all specific conditions relating to the sale or supply of Products to the Customer (including, but not limited to, descriptions, prices and specified places and dates of supply) contained in or referred to in the Order Acknowledgement.
“Vohkus” means Vohkus Limited, a company incorporated in England and Wales (company number 04142508) whose registered office is situated at Centurion House, 12 Barnes Wallis Road, Segensworth, Fareham, Hampshire, PO15 5TT.
2.1 These Conditions shall apply to and shall be deemed to be incorporated into any Order Acknowledgement as if set out therein except where and to the extent that Vohkus and the Customer execute a separate written agreement with respect to such Order Acknowledgement or the Products referred to therein.
2.2 No other terms or conditions (including, without limitation, any terms or conditions delivered by the Customer to Vohkus at any time, whether before or after these Conditions are provided to the Customer) shall apply to any Order Acknowledgement, or to any Products referred to therein, except as expressly provided for in these Conditions.
2.3 Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions. If there is a conflict between these
Standard Terms and Conditions and the Special
Conditions then these Standard Terms and Conditions shall prevail unless expressly and specifically amended by the Special Conditions.
2.4 Where Vohkus provides or otherwise notifies the Customer of any third party or other Product-specific terms that are applicable to any Products, the Customer shall comply at all times with such terms; and indemnify Vohkus and keep Vohkus fully and effectively indemnified against all actions, claims and proceedings and all losses, costs, damages and expenses suffered, made or incurred by Vohkus or any member of its group as a consequence of or in connection with the Customer’s failure to comply with such terms.
3.1 Any quotation made by Vohkus is subject to Vohkus obtaining satisfactory credit and payment references in respect of the Customer. A quotation shall not constitute an offer, unless otherwise stated therein, and shall only remain valid for 14 days after which time it shall lapse and cease to be binding on Vohkus. Every quotation is subject to revision by Vohkus for errors and omissions.
3.2. Any samples, drawings, descriptive matter or advertising issued by Vohkus and any descriptions of the Goods or illustrations or descriptions of the services contained in the Vohkus’ catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of services and/or goods described in them. They shall not form part of the Contract nor have any contractual force.
3.3. Customer acknowledges that as a reseller the costs and charges incurred by Vohkus for supply of the Products is variable over time and hence any confirmed purchase orders billed on a periodic basis shall be invoiced at the price in effect at the date of invoice. Any change to the charges set out in the quotation will only reflect an increase or decrease in direct costs for Vohkus in supplying the Products. All other confirmed purchase orders shall be invoiced at the price in effect at the time of Vohkus’ acceptance of the order.
3.4 Unless otherwise stated by Vohkus in the quotation or Order Acknowledgement prices exclude VAT but are inclusive of any and all delivery charges (including, without limitation, transportation, packing and transit insurance costs).
3.5 Vohkus may increase the fees or charges for any Product prior to delivery in line with the percentage increase in the Retail Prices Index.
4.1 Vohkus shall supply Products to the Customer in accordance with the relevant Contract.
4.2 Delivery of any goods comprised in the Products shall be deemed to take place when the goods are delivered by or on behalf of Vohkus or the Customer or a person contracted by the Customer to transport the goods otherwise takes physical possession of the goods. Risk of loss or damage to such goods shall pass to the Customer at the time of delivery. Notwithstanding the foregoing, risk
of loss or damage to goods which are returned to Vohkus for the purposes of providing the Products shall remain with the Customer at all times.
4.3 Any delivery date for any Product given by Vohkus is given as an estimate only and Vohkus shall in no event be liable for delays in delivery. Time shall not be of the essence for delivery of any order between Vohkus and the Customer. Vohkus shall not be responsible for any delay or failure to deliver due to any act or circumstances beyond Vohkus’ reasonable control.
4.4 Vohkus shall be entitled to use any method or means of transportation to deliver Products and may despatch the Products in multiple shipments.
5.1 Vohkus shall supply services to the Customer in accordance with a completed statement of work (“SOW”) describing services to be provided to Customer by Vohkus.
5.2 Vohkus shall use all reasonable endeavours to meet any performance dates for the services specified in the SOW, but any such dates shall be estimates only and time shall not be of the essence for the performance of services.
5.3 Vohkus reserves the right to amend services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of services, and Vohkus shall notify the Customer in any such event.
6.1 The Customer shall:
If Vohkus does not receive from the Customer sufficient instructions to enable it to despatch any Products within 7 days after notifying the Customer that the Products are ready for despatch, Vohkus shall be entitled to arrange storage of the Products, either at its own premises or elsewhere, on the Customer’s behalf and all charges for storage, insurance, transport and demurrage (including Vohkus’ charges for storage and incidental expenses) shall be payable by the Customer.
8.1 In the event of any cancellation by the Customer of all or part of an order less than 72 hours before the relevant estimated delivery date the Customer shall, if so required by Vohkus, pay to Vohkus a cancellation charge equal to 25% of the order value, with a minimum charge of £25.
8.2 Orders for Products specifically made for the Customer are not able to be cancelled.
9.1 Customer may only return non-defective goods if: (a) prior written approval has been obtained from Vohkus; (b) the request for the return is made within 14 days of the receipt of the relevant Products; (c) the relevant Products are properly packed to preserve their condition whilst in transit and; (d) the relevant Products are in the manufacturer’s original packing, are in a saleable condition and any software packages or seals have not been opened. If the Customer returns any non-defective Products the Customer shall, at the discretion of Vohkus, pay a re-stocking charge equal to 25% of the order value with a minimum charge of £25.
10.1 The Customer shall pay to Vohkus all fees, charges, costs and expenses set out in the relevant Contract, if no price is quoted, the price set out in Vohkus' published price list as at the date of delivery.
10.2 Unless specifically agreed otherwise in writing, all amounts owed by the Customer to Vohkus shall be paid in UK pounds sterling within 30 days of receipt of the invoice by such means as Vohkus may specify from time to time. Time for payment shall be of the essence of the Contract
10.3 Any payment to be made under the Contract shall be made in full, free and clear of any set-off, restriction, condition or counterclaim and without any deduction or withholding for or on account of tax, save as required by law. If any such deduction or withholding is required by law to be made the Customer shall pay to Vohkus such additional amount as will ensure that Vohkus receives the same total amount that it would have received if no such withholding or deduction had been required.
10.4 Vohkus may invoice the Customer at any time after the Products have been despatched or provided and Vohkus reserves the right to invoice the Customer for Products delivered in instalments after each such instalment has been despatched or provided.
10.5 Vohkus shall be entitled to charge interest on any invoiced sum which is not paid by the Customer on the due date on a daily basis from the date the amount fell due to the actual date of payment (inclusive) at a rate of 4% per annum over the base lending rate of the Bank of England from time to time.
10.6 The Customer must notify Vohkus in writing of any errors within the invoice within 14 days of receipt of the invoice.
10.7 The Customer’s credit limit may be amended or withdrawn without prior notice.
10.8 Title to any goods supplied to the Customer shall pass only upon payment in full for such goods in cleared funds. Whilst ownership of any Products remain with Vohkus, the Customer shall:
10.10 The Customer may resell the Products in the ordinary course of business at full market value and the Customer shall hold such part of the proceeds of sale as represent the amount owed by it to Vohkus on trust on behalf of Vohkus and the customer shall account to Vohkus accordingly.
10.11 The Customer’s right to possession of the Products shall terminate immediately if it becomes subject to any of the insolvency circumstances identified in Conditions 13.1(B).
11.1 Vohkus shall deliver any services to be delivered by Vohkus and comprised within the Products with reasonable skill and care.
11.2 Any warranty offered by any Product manufacturer will be passed onto the Customer to the extent permitted by the terms of such warranty. Vohkus’ sole obligation under this Condition 11.2 shall be at its option to repair or replace (or procure the repair or replacement of) the Products or any part thereof to the extent provided for pursuant to the applicable manufacturer’s warranty.
11.3 Vohkus does not warrant that any Product purchased by the Customer is compatible with the Customer’s own, or any third party, hardware or software. The Customer is advised to contact the manufacturers direct to ascertain compatibility of hardware and software.
11.4 Without prejudice to anything in this Condition 11, the Customer shall carefully inspect the Products on delivery and Vohkus shall not be liable for the delivery of faulty Products unless written notice is given to Vohkus within 7 days of the date upon which the Products were delivered or, in respect of latent defects not apparent on immediate inspection, within 7 days of the date upon which the defect was discovered.
11.5 Vohkus reserves the right to require that all faulty Products be returned to Vohkus. In that event Vohkus shall pay the cost of carriage by normal means on returned Products and any repaired or replacement Products will be delivered free of charge by Vohkus to (at Vohkus’ discretion) the location from which they were despatched by the Customer or such other location as Vohkus may reasonably determine or the parties may agree.
11.6 Vohkus shall not be liable for the delivery of faulty Products if:
11.7 Save as expressly set out in these Conditions, neither Party gives any representation or warranty (express or implied) in respect of the subject matter of any Contract. All warranties, conditions and other terms implied by statute or common law (save for conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.1 Nothing in these Conditions shall exclude or limit the liability of any party for (i) death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents; (ii) fraud and/or fraudulent misrepresentation by that party or its directors, officers, employees, contractors or agents; or (iii) any other losses to the extent they are not capable of being excluded or limited by applicable law.
12.2 Subject to Condition 12.1:
Vohkus’ maximum aggregate liability for all claims arising under or in connection with any Contract, whether in contract or tort (including negligence), for misrepresentation, breach of any duty (including strict liability) or otherwise, shall be limited to a sum equal to the relevant Contract price; and
Vohkus shall not be liable to the Customer under any Contract, whether in contract or tort (including negligence), for misrepresentation, breach of any duty (including strict liability) or otherwise, for (i) any indirect or consequential loss or damage; or (ii) any loss of profits, revenue, sales, business, agreements, contracts or anticipated savings, any loss of, or damage to, goodwill, or any loss or corruption of data (in each case whether direct or indirect).
The limits and exclusions in this clause reflect the insurance cover Vohkus has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
13.1 Without prejudice to any other rights to which it may be entitled under the Contract Vohkus may give notice in writing to the Customer terminating the Contract with immediate effect if:
13.2 Termination or expiry of the Contract shall not affect any rights, liabilities or remedies arising under the Contract prior to such termination.
13.3 on termination of the Contract, the Customer shall pay immediately to Vohkus:
13.2 the Customer shall return all of Vohkus Products which have not been fully paid for. If the Customer fails to do so, then Vohkus 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.
14.1 The Customer may not assign, novate or otherwise transfer or dispose of, or create any trust in relation to, any or all of its rights and obligations under a Contract without the prior written consent of Vohkus.
14.2 Vohkus may without the consent of the Customer may sub-contract or delegate the performance of any of its obligations under the Contract, provided that Vohkus shall be liable to the Customer in respect of all acts or omissions of any Sub-Contractors for and to the extent to which, if such acts or omissions were of Vohkus, Vohkus would be liable to the Customer.
15.1 All Intellectual Property Rights in or arising out of or in connection with the Products (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Vohkus or its supplier.
15.2 Vohkus grants to the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use or copy materials developed by Vohkus (or a sub-contractor or any third party on behalf of Vohkus) for the purpose of receiving and using the services in its business.
15.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 15.2.
15.4 The Customer grants Vohkus a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Vohkus for the term of the Contract for the purpose of providing services to the Customer.
16.1 The following definitions apply in this clause 16:
16.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 16 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
16.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Vohkus is the Processor.
16.4 Without prejudice to the generality of clause 16.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Vohkus and/or lawful collection of the Personal Data by Vohkus on behalf of the Customer for the duration and purposes of the Contract.
16.5 Either party may, at any time on not less than 30 days' notice, revise this clause 16 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations, excluding payment obligations, if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 1 month, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.
18.1 All notices which are required to be given under the Contract will be in writing and in the English language. Faxes and email (but not any other form of electronic communication) shall be permitted for the giving of a notice.
18.2 Any such notice sent to Vohkus shall be sent to the following address or number:
Address: Centurion House, 12 Barnes Wallis
Road, Segensworth, Hampshire, PO15 5TT
For the attention of: Company Secretary
Telephone no.: 0345 647 3000
Facsimile no.: 0845 647 0403
18.3 Any such notice sent to Customer shall be sent to their principal place of business.
18.4 All such notices shall, in the absence of earlier receipt, be deemed to have been duly given as follows:
19.1 No delay or omission by either party in exercising any right, power or remedy provided by law or under the Contract shall affect that right, power or remedy, operate as a waiver of it or operate as an affirmation of the Contract.
19.2 The single or partial exercise of any right, power or remedy provided by law or under the Contract shall not unless otherwise expressly stated preclude any other or further exercise of it or the exercise of any other right, power or remedy.
19.3 The rights, powers and remedies provided in the Contract are cumulative and not exclusive of any rights, powers and remedies provided by law.
19.4 If any provision, or any part thereof, of the Contract is or shall be declared or become unenforceable, invalid or illegal for any reason whatsoever, the other terms and provisions of the Contract shall remain in full force and effect.
20.1 Neither party shall directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment or engagement of the other party, or any member of the other party’s group, any person employed or engaged by the other party, or any member of the other party’s group, in connection with the supply or receipt of the Products, other than by means of a public advertising campaign.
Headings in these Conditions are for convenience only and do not affect the interpretation of these Conditions.
22.1 The Contract constitutes the whole and only agreement between the parties relating to its subject matter and supersedes and excludes all prior agreements or arrangements in that regard made between them.
22.2 Except in the case of fraudulent misrepresentation, each party acknowledges that in entering into the Contract it is not relying upon any pre contractual statement which is not set out in the Contract and no party shall have any right of action against any other party to the Contract arising out of or in connection with any pre contractual statement except to the extent that it is repeated in the Contract.
22.3 Except as otherwise permitted by the Contract, no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
23.1 Each Contract shall be governed by and shall be construed in accordance with the laws of England and Wales. Any matter, claim or dispute arising out of or in connection with the Contract, whether contractual or non-contractual, is to be governed by and determined in accordance with the laws of England and Wales.
23.2 Each party irrevocably submits and agrees to submit to the exclusive jurisdiction of the courts of England and Wales and agrees that any proceeding, suit or action arising out of or in connection with any Contract shall be brought in those courts.