Terms and Conditions of Sale

Terms and Conditions of Sale as PDF

UK BROADBAND LIMITED TERMS AND CONDITIONS – PRODUCT ORDERS AND SALES

1. DEFINITIONS

In these terms and conditions:
“Confidential Information” means all information whether conveyed orally, in writing, in machine readable form or otherwise which relates to a party's business, products, developments, trade secrets, know-how, personnel, suppliers and customers (whether or not designated as "confidential information" by the disclosing party) together with all information derived from the above, and all information designated as confidential or which ought reasonably to be considered confidential but does not include information which: (A) is or becomes public knowledge other than by breach of the Contract; (B) is received from a third party who lawfully acquired or developed it and who is under no obligation of confidence in relation to its disclosure; or (C) is independently developed without the use of the other party's Confidential Information;
‘Contract’ shall have the meaning given in clause 2.1;
‘Customer’ means the party who places an order contemplated by clause 2.1 to whom UKB agrees to supply Products in accordance with these terms and conditions;
‘Intellectual Property Rights’ means any and all rights in any invention, discovery, improvement, patent, copyright, database right, design, mask work right or circuit layout right, and any and all rights of whatever nature in computer software and data, trade secrets, know-how and other data that has been reduced to writing (whether in physical or electronic form), and any and all intangible rights and privileges of a nature similar to any of the foregoing, in every case in any part of the world and whether or not registered, including all rights in any applications and granted applications for any of these rights;
‘Products’ means goods to be supplied to the Customer by UKB in accordance with these terms and conditions;
‘Third Party Software’ means all software licensed to UKB from a third party owner and which comprises part of the Products; and
‘UKB’ means UK Broadband Limited whose principal place of business is at 3rd Floor, International House, 7 High Street, Ealing W5 5DB, England or any company in its group, as that term is defined in section 1261(1) of the Companies Act 2006.

2. ORDER ACCEPTANCE

2.1 All orders placed with UKB by the potential Customer for Products and any ancillary services shall be subject to these terms and conditions and constitute an offer to UKB, under these terms and conditions, subject to acceptance of the order by UKB’s authorised representative. Once such an offer is accepted by UKB these terms and conditions shall form a contract for the sale of Products by UKB to the Customer (the ‘Contract’)
2.2 All orders are accepted and Products and any ancillary services are supplied subject to the version of these terms and conditions published on the UKB website at the date of the order.

2.3 No amendment of or supplement to any terms to the Contract will be valid unless confirmed in writing on or after the date of the Contract by UKB’s authorised representative.
2.4 It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase or other document provided by the Customer to UKB, unless expressly agreed otherwise by UKB in writing and signed by UKB’s authorised representative.
2.5 The Contract shall apply to the supply of Products worldwide unless otherwise specified by UKB.

3. DESPATCH, RISK AND TITLE

3.1 Any time quoted for despatch of Products is to be treated as an estimate only and time for despatch or delivery shall not be of the essence. Despatch may be postponed because of reasons beyond UKB’s reasonable control. In no event shall UKB be liable for any damages or loss whatsoever due to delay in despatch or delivery.
3.2 Risk in Products shall pass from UKB to the Customer on delivery of the relevant Product.
3.3 Subject to clause 9 (Intellectual Property Rights), title in Products shall pass from UKB to the Customer on unconditional payment in full of all amounts owing for the relevant Product. Until title in the Products passes to the Customer:
(A) the Customer shall hold the Products as UKB’s fiduciary agent and bailee;
(B) the Customer shall keep the Products properly stored, protected and insured and identified as UKB’s property;
(C) the Customer shall be entitled to resell or use the products in the ordinary course of its business and shall account to UKB for the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties; and
(D) UKB shall be entitled at any time to require the Customer to deliver up the Products to UKB, and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.

4. CANCELLATION AND RESCHEDULING

4.1 Any request by the Customer for cancellation of any order or for rescheduling of deliveries will only be considered by UKB if made at least 24 hours before despatch of the Products or performance of any ancillary services, and shall be subject to acceptance by UKB at UKB’s sole discretion and payment of UKB’s current cancellation and administration charges.
4.2 The Customer agrees to indemnify UKB against all losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the cancellation or rescheduling of an order.

5. PRICES

5.1 Catalogues, price lists and other advertising literature used by UKB are intended only as an indication as to price and range of goods offered and no prices, descriptions or other particulars contained in them shall be binding on UKB or form part of the Contract.
5.2 All prices are given by UKB on an ex-works basis and the Customer is liable to pay for transport, packing and insurance unless otherwise stated.
5.3 All quoted prices are valid for 30 days from the date of a quote, unless otherwise stated. If after that date there is an increase in such costs in respect of Products which have not yet been despatched, the quoted price may be subject to amendment on notice by UKB.
5.4 All prices are exclusive of Value Added Tax and any other applicable sales taxes or duty which are payable by the Customer on presentation by UKB of a valid tax invoice.

6. PAYMENT

6.1 Invoices will be raised and dated by UKB on or after the date of despatch of the Products. Unless otherwise specifically agreed by UKB, all invoices are payable within 30 days of the date of invoice.
6.2 Payments which are not received when payable will incur interest for late payment at the rate of 8% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis until the amounts are paid in full and will be payable on demand after as well as before judgment. The Customer shall reimburse UKB on demand for any costs or charges it incurs in connection with the collection of any late payment from the Customer.
6.3 The Customer’s right to sell or use any Products in which property has not passed to the Customer in accordance with this clause 6 shall immediately cease if an administrative receiver or similar person is appointed over all or any part of its assets or if it is adjudicated insolvent or enters into liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.
6.4 On termination of the Customer’s right to sell or use the Products the Customer will immediately hold the products to the order of UKB.
6.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of UKB, but if the Customer does so, all monies owing by the Customer to UKB shall (without prejudice to any other right or remedy of UKB) forthwith become due and payable and time of payment shall be of the essence in respect of such payment.
6.6 UKB reserves the right to cease supply of Products and any ancillary services to the Customer at any time in the event of any breach of the Contract. On such cessation of supplies, UKB reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes immediately due for payment.

7. SPECIFICATION OF PRODUCTS

7.1 Unless otherwise agreed, Products are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified. UKB reserves the right to increase its quoted or listed price, or to render additional charges, in respect of any Contract for the sale of Products of nonstandard specifications.
7.2 UKB will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in any Product manufacturer’s specification or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. UKB will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any notice of it from the manufacturer of the Products.
7.3 UKB does not provide any advice or services in respect of the products unless such advice or services are specifically included in a quote and invoice.

8. PRODUCT SAFETY INFORMATION

8.1 The Customer undertakes to provide any product safety information, instructions or warning notices supplied with the Products, or supplied by the manufacturer of the Products or UKB  from time to time, to any third parties to which it resells, distributes or supplies the Products or any elements of the Products, or services delivered using any Product.
8.2 The Customer undertakes not to remove any product safety information, instructions or warning notices attached to or affixed on the Products.
8.3 The Customer undertakes to comply (and to procure that any relevant third party using the Products or services delivered using the Products shall comply) with any instructions provided by UKB or the Product’s manufacturer as to its use of the Products.
8.4 The Customer shall ensure that each Product has an ingress protection rating adequate for the environment in which it is to be installed, and if not, that the Product is installed in an adequate protective enclosure.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The Customer acknowledges that any Intellectual Property Rights in any Third Party Software supplied under this Contract shall at all times, and for all purposes, vest and remain vested in the Third Party Software owner.
9.2 The Customer acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered by UKB (including if so required the execution and return of a Third Party Software licence). The Customer acknowledges that any failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the proprietary owner.
9.3 The Customer shall notify UKB of any breach or alleged breach of any Intellectual Property Rights in any Third Party Software as soon as possible after it has knowledge of it.
9.4 No title or ownership of software products or any Third Party Software licensed to the Customer under this Contract is transferred to the Customer under any circumstances.

10. WARRANTY

10.1 UKB warrants that it has good title to or licence to supply the Products to the Customer.
10.2 Subject to the payment of all charges for the relevant Products, UKB shall pass on to the Customer (so far as is possible) the benefit of any warranty given to UKB by the manufacturer of the Products and will supply to the Customer details of the terms and conditions of such warranty. The Customer shall be solely responsible to the entire exclusion of UKB for complying with any requirements of applicable warranty terms and conditions.
10.3 All software supplied under the Contract is supplied “as is” and the sole obligation of UKB in connection with the supply of software is to use reasonable endeavours to obtain and supply a corrected version from the supplier concerned in the event that any such software should fail to conform to its product description, provided always that the Customer notifies UKB of any such non-conformity within 90 days of the date of delivery of the applicable software.
10.4 If the Customer is entitled to reject any Product by reason of non-compliance with the warranty referred to in clause 10.2 UKB will only accept the return of such Product if it receives written notification of such non-compliance giving detailed reasons for rejection and the Customer complies with all returns procedures for that Product notified to it. UKB  will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the supplier and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Customer until UKB has provided the Customer with a corresponding credit note.
10.5 Except as specifically set out in this clause 10, UKB disclaims and excludes to the maximum extent permitted by law all warranties, whether express or implied, by statue or otherwise, whether relating to any products or ancillary services supplied under the Contract, including but not limited to the warranties of description, design, merchantability and fitness for a particular purpose, that the Products will be error free or arising from any previous course of dealing, usage or trade practice.

11. INDEMNITIES AND LIMITS OF LIABILITY

11.1 Nothing in the Contract shall restrict or exclude either party’s liability arising:
(A) under Part 1 of the Consumer Protection Act 1987, to the extent applicable directly or indirectly;
(B) in respect of fraudulent misrepresentation;
(C) for death or personal injury caused by UKB’s negligence; or
(D) arising under Section 12 of the Sale of Goods Act 1979.
11.2 UKB may be liable to the Customer for damage to property caused by defects in any of the Products or the negligence of UKB’s assigned employees acting within the course of their employment and the scope of their authority. The total liability of UKB in respect of any such damage to property, howsoever caused, shall be limited to £100,000 for any one event or series of connected events.
11.3 Subject to clauses 11.1 and 11.2, UKB shall not be liable to the Customer by reason of any representation or implied warranty, condition or other term or any duty of common law, or under the express terms of the Contract, these terms and conditions or otherwise, for any loss of profits, revenue, anticipated savings or goodwill or for any type of special, indirect or consequential loss or damage (including business interruption), howsoever arising, whether or not such loss is reasonably foreseeable at the date  of acceptance of the Contract or UKB has been advised of the possibility of the Customer incurring such loss, and whether occasioned by the negligence of UKB or its employees, agents or sub-contractors.
11.4 Subject to clauses 11.1, 11.2 and 11.3, UKB’s total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation or otherwise, arising in connection with the performance or contemplated performance of any Contract shall be limited to the value of the Products and any ancillary services purchased and paid for by the Customer from UKB under that Contract.
11.5 In respect of any claim brought by a third party against the Customer in relation to any Product or ancillary services supplied under the Contract, the Customer shall:
(A) promptly notify UKB as soon as reasonably practicable of any claim of which it has notice;
(B) not admit any liability or agree to any settlement or compromise of claim without first consulting with UKB;
(C) allow UKB to manage and conduct all negotiations and proceedings at UKB’s own expense; and
(D) provide all reasonable assistance as required by UKB in connection with the conduct of the claim.
11.6 The Customer shall indemnify and keep indemnified UKB and its directors, officers and employees against any loss, damage, cost or claim to or against it in respect of:
(A) any claims by third parties which are occasioned by or arise from UKB’s acts or omissions undertaken in response to the instructions of the Customer or its authorised representative;
(B) any breach by the Customer of applicable laws and regulations;
(C) acts or omissions of the Customer in breach of the Contract;
(D) any demand, action, claim or proceedings by a Third Party Software owner in connection with the breach of the conditions of the licence for that software described in clause 9.2 (Intellectual Property Rights); and
(E) use of Third Party Software contrary to the Contract or in combination with any other software, product or service not approved in writing by an authorised representative of UKB.

12. CONFIDENTIAL INFORMATION

12.1 Confidential Information shall be treated as proprietary and confidential to the party imparting it.  Each party agrees that it shall use the Confidential Information received or procured by it from the other solely for the purposes of the Contract and that it shall not at any time during or after completion, expiry or termination of the Contract disclose the same whether directly or indirectly to any third party except:
(A) with the prior written consent of the other party;
(B) to the extent necessary to comply with any law or the valid order of a court or tribunal of competent jurisdiction or the rule, regulation or direction of any governmental or other regulatory authority or agency in which event the relevant party shall so notify the other as promptly as reasonably practicable (and if possible prior to making any disclosure) and shall use its reasonable endeavours to seek confidential treatment of such information;
(C) to its auditors, legal advisers and other professional advisers provided that it uses its reasonable endeavours to procure that such persons maintain such confidentiality;
(D) in order to enforce its rights under the Contract; and
(E) by UKB to a prospective purchaser of UKB or its business provided that such person only uses the information for that purpose and is subject to confidentiality protections equivalent to this clause 12.
12.2 Each party acknowledges and agrees that damages would not be an adequate remedy for any breach of this clause 12 and that either party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this clause 12.
12.3 The obligations contained in this clause 12 shall endure beyond the termination of the Contract without limit in time except and until any Confidential Information enters the public domain otherwise than through the default of the party receiving the same.
12.4 The Customer shall ensure that confidentiality terms to the effect of this clause 12 are imposed on its customers in any agreement it has with its customers in respect of the Products.

13. TERMINATION

13.1 The Contract may be terminated forthwith by notice in writing:
(A) by UKB if the Customer fails to pay any sums due under the Contract by the due date, notwithstanding the provisions for late payment in clause 6;
(B) by UKB in part in respect of the relevant Products if the third party supplier of the Products to it terminates the supply of those Products to UKB;
(C) by either party where the other party commits a material breach of this Contract and such breach is not capable of remedy or, if capable of remedy is not remedied within a period of 14 days after written notice to remedy by the other party; or
(D) by either party whether the other party is involved in any legal proceedings concerning its solvency, or ceases trading , or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purpose of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.

14. EXPORT AND/OR RE-EXPORT LIMITATION

14.1 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 UKB  of an ultimate destination for any Products, the Customer will not export or re-export directly any Products without first obtaining at its own expense all such written consents or authorisations as may be required by any applicable government regulations and, if requested, produce evidence of any such consents or authorisations to UKB . Failure to obtain such consents or authorisations does not entitle the Customer to withhold or delay any payments due under the Contract.

15. GENERAL

15.1 The headings in these terms and conditions are for ease of reference only and shall not affect its interpretation or construction.
15.2 No forbearance, delay or indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
15.3 The relationship between UKB and the Customer is that of independent contractors.  Neither party is the agent of the other nor has any authority to make any contract or make any obligation expressly or impliedly in the name of the other party, without that party’s prior written consent.
15.4 The Customer agrees not to assign any of its rights under the Contract without the prior written consent of UKB.
15.5 In the event of the Contract, these terms and conditions or any part of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.
15.6 Neither party shall be liable to the other for any delay in or failure to perform its obligations under the Contract (other than a payment of money) where such delay of failure results from force majeure, act of God, fire, explosion, accident, industrial dispute, acts of Government or third party infrastructure providers or any other cause beyond its reasonable control.
15.7 Any notices given under the Contract by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the address of UKB set out on the first page of this Contract and to the Customer to the address set out on the order or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices.
15.8 The Contract, these terms and conditions and any non-contractual obligations arising in connection with them shall be governed and constructed in accordance with the laws of England and Wales.
15.9 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).