1.1 In these Conditions:
E-ZU means E-ZU Solutions Ltd; “the Buyer” means the company or person whose order is accepted by E-ZU; “Contract” means the contract for the purchase and sale of hardware and/or software and/or services incorporating these Conditions.
1.2 Headings are for convenience and do not affect interpretation.
2 Basis of Sale
2.1 E-ZU will sell and the Buyer will purchase the hardware and/or the software and/or the services in accordance with any written order of the Buyer which is accepted by E-ZU, subject in either case to these Conditions.
2.2 These Conditions govern the Contract to the exclusion of any other terms and conditions (if any) contained on or referred to in an order form or other communication from the Buyer. No addition, variation or substitution of these Conditions will bind E-ZU or form part of any order unless agreed in writing and signed by authorised representatives of both parties.
2.3 These Conditions and the terms of any order constitute the entire understanding of the parties and supersede all prior promises, representations and undertakings.
2.4 No E-ZU employee or agent is authorised to make any representations concerning the subject matter of the Contract unless confirmed by E-ZU in writing. The Buyer acknowledges that it is not relying on any such representation not so confirmed.
3.1 Any order placed with E-ZU will be accepted at E-ZU’s sole discretion and, if accepted, will only be accepted on and subject to these Conditions.
3.2 Each order so accepted constitutes a separate legally binding Contract between E-ZU and the Buyer.
3.3 The Buyer is responsible for ensuring the accuracy of any order submitted by the Buyer.
3.4 E-ZU reserves the right to modify any hardware and/or software ordered, which are required to conform with any applicable safety or statutory requirements, or which do not materially affect their quality or performance.
3.5 Once accepted by E-ZU, no order may be cancelled by the Buyer without E-ZU’s express prior written agreement.
4.1 Orders are accepted at the price given at the date of order.
4.2 Unless otherwise stated, quotations are valid for acceptance for 30 days or earlier acceptance, after which they will lapse. Any quotation that has lapsed must be reconfirmed with E-ZU prior to an order being accepted.
4.3 E-ZU reserves the right, by giving the Buyer written notice at any time before delivery, to increase the price of hardware and/or software to reflect any increase in the cost to E-ZU which is due to any factor beyond E-ZU’s control. Where possible, E-ZU will provide 30 days’ notice of any price changes but the Buyer acknowledges this may not always be possible where prices vary for reasons outside of E-ZU’s control. E-ZU therefore reserves the right to vary prices at short, or even no, notice. Any price changes will be notified to the Buyer as soon as reasonably possible.
4.4 All prices are exclusive of VAT and any other sales taxes and delivery charges, unless otherwise stated. All delivery charges are charged as extra, irrespective of invoice value. Any overseas duties and taxes will be the responsibility of the Buyer.
5.1 Payment will be made by the Buyer within 30 days of delivery or of receipt of invoice, if earlier.
5.2 If a discount is given, VAT is calculated on the discounted price.
5.3 Interest on overdue invoices will be payable by the Buyer, before as well as after judgment, on a daily basis at an annual rate of 3% above Lloyds Bank Plc base lending rate from time to time.
5.4 The Buyer is not entitled to withhold or delay any payment due by reason of any actual or alleged defect, whether or not such defect is the subject of any claim.
5.5 The Buyer is responsible for any bank or other charges (including, but not exclusively, transfer charges, costs of cheques not being honoured etc.).
5.6.1 any sum owed by the Buyer to E-ZU, or any other associated company, under this or any other contract is overdue; or
5.6.2 at any time the credit standing of the Buyer has in E-ZU’s reasonable opinion been impaired for any reason; or
5.6.3 the Buyer fails to make any payment when it becomes due; or
5.6.4 the Buyer makes any voluntary composition or arrangement 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); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or if a resolution for the winding up of the Buyer is passed or a court makes an order to that effect; or if there is any breach by the Buyer of these Conditions; or the Buyer ceases, or threatens to cease, to carry on business; or E-ZU reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,
then E-ZU may, without prejudice to its other rights and remedies and at its option, be entitled to cancel the Contract or withhold any further deliveries and/or suspend the provision of further services without liability to the Buyer until arrangements as to payment or credit have been established to E-ZU’s reasonable satisfaction.
5.7 E-ZU shall be entitled but not obliged at any time or times without notice to the Buyer to set off any liability of the Buyer (or any group company of the Buyer) to E-ZU against any liability of E-ZU to the Buyer (or any group company of the Buyer) (in either case howsoever arising and whether any such liability is present or future liquidated or unliquidated and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Any exercise by E-ZU of its rights under this clause shall be without prejudice to any other rights or remedies available to E-ZU under this Contract or otherwise.
6.1 Delivery is the responsibility of the Buyer and E-ZU arranges delivery solely as the Buyer’s agent. E-ZU accepts no responsibility for any loss or damage in transit. Any such loss or damage must be notified to E-ZU and the courier, in writing within 48 hours.
6.2 Delivery dates are given in good faith but are business estimates only and are not guaranteed. E-ZU is not liable for any loss or damage suffered by the Buyer as a result of E-ZU’s failure to comply with such delivery times.
6.3 The Buyer’s refusal to accept delivery (either part or whole) shall permit E-ZU to treat the Contract as repudiated by the Buyer and to decline to make any further deliveries, without prejudice to E-ZU’s right to recover damages for breach of contract.
6.4 E-ZU reserves the right to make deliveries in instalments. If the Buyer refuses or fails to accept any delivery, E-ZU reserves the right to invoice the Buyer in respect of the balance remaining undelivered, with payment becoming due immediately, and E-ZU shall be entitled to charge reasonable storage costs to the Buyer, the hardware and/or software being held at the Buyer’s risk.
6.5 E-ZU may agree, for a separate charge, to provide certain advice and/or consultancy services at the premises of the Buyer or elsewhere. Such services shall be subject to obtaining full information from the Buyer as to its specific requirements and strictly limited to advice regarding E-ZU’s own product range. If it does, then the Buyer shall indemnify E-ZU against any loss, damage or injury caused to E-ZU’s employees, agents or contractors during or as a result of or in connection with the provision of such services.
7 Title and Risk
7.1 Property in the hardware shall only pass to the Buyer on receipt by E-ZU in cash or cleared funds payment in full of the price of that hardware.
7.2 Property in any software shall, at all times, remain vested in E-ZU or its licensor, and the Buyer’s rights shall be governed by the terms of any licence relating to such software.
7.3 Risk in the hardware and/or software shall pass to the Buyer:
7.3.1 if delivered by E-ZU to a place nominated by the Buyer, when tendered for delivery at that place; or
7.3.2 if to be collected by the Buyer (or its agent), when loaded onto the Buyer’s (or its agent’s) vehicle, or at such time as they are available for so loading and would have been loaded but for the Buyer’s (or its agent’s) failure to collect them; or
7.3.3 if withheld by E-ZU for any valid reason, at such time as the Buyer would have been able to collect them had E-ZU not been so withholding them,
and the Buyer is responsible for insuring the hardware and software from any such time.
7.4 Until such time as property in the hardware passes to the Buyer:
7.4.1 the Buyer shall hold the hardware as E-ZU’s fiduciary agent and bailee, and shall keep all such items separate and distinct from those of the Buyer and third parties, and separately stored, protected and adequately insured, and identified as E-ZU’s property. Until such time, the Buyer shall be entitled to resell or use such items in the ordinary course of its business, but shall account to E-ZU for the proceeds of sale or otherwise of such items, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate and distinct from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and adequately insured; and
7.4.2 provided that the hardware is still in existence and has not been resold, E-ZU shall be entitled at any time to require the Buyer to deliver up the hardware to E-ZU and, if the Buyer fails to do so forthwith, to enter on any premises of the Buyer or any third party where such items are stored and repossess them.
The Buyer will indemnify E-ZU for any loss or degradation of or damage to any hardware caused whilst such hardware is in the possession or under the control of the Buyer.
7.5 Any hardware and/or software supplied to the Buyer which is subject to any restrictions or provisions imposed by the manufacturer’s and/or licensor’s conditions are supplied to the Buyer by E-ZU subject to any such conditions and on the terms of any applicable licence agreement.
7.6 The Buyer is not entitled to pledge or in any way charge by way of security for any indebtedness any hardware and/or software which remain the property of E-ZU (or its licensor) but, if the Buyer does so, all moneys owing by the Buyer to E-ZU shall (without prejudice to E-ZU’s other rights and remedies) become immediately due and payable.
8.1 All hardware and/or software are supplied on and subject to the terms and conditions of warranties and licences of the original manufacturers and/or licensors. E-ZU will pass on to the Buyer the benefit of any guarantees or indemnities given to it by its supplier. Any software supplied is not warranted to operate error-free or on an uninterrupted basis.
8.2 E-ZU makes no warranty as to the description, quality, fitness for purpose, suitability or otherwise of any hardware and/or software supplied. E-ZU accepts no responsibility for any loss or damage, arising directly or indirectly, from the use of any hardware and/or software supplied by it, including any loss arising by reason of any failure of the hardware and/or software to comply with any specifications provided by the Buyer.
8.3 Except as otherwise expressly provided, and except where the Buyer deals as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the hardware and/or software are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
9.1 E-ZU reserves the right, at its sole discretion (acting reasonably), to determine whether any hardware and/or software is defective. Defective hardware and/or software will, at E-ZU’s option, be replaced or rectified by E-ZU. If this is not practicable, E-ZU will credit the value of the hardware and/or software at the original invoiced price. Any claim for defective hardware and/or software must be made in writing with an E-ZU RMA form within 7 days of delivery. The Buyer will have no claim in respect of any breach of warranty that should have been apparent on a reasonable visual examination of the hardware and/or software supplied. All associated transport charges for delivery to E-ZU are the responsibility of the Buyer. The Buyer is not entitled to terminate the Contract as a result of any defects discovered in any delivery.
9.2 Returns may only be made with an E-ZU RMA form and where a valid returns authorisation number has been issued by E-ZU. This number must be displayed on the outside of any packaging and the RMA form and E-ZU will not accept delivery of any hardware and/or software returned without this. The terms governing any loan unit (if any) supplied by E-ZU are as set out on the RMA form.
10 Limitation of Liability
10.1 Except in respect of death or personal injury caused by E-ZU’s negligence (for which there shall be no limit on liability):
10.1.1 E-ZU is not liable to the Buyer by reason of any representation, implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, consequential or special loss or damage (including but not limited to loss of profit, business opportunity, contracts or otherwise), costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of E-ZU, its employees or agents or otherwise) arising out of or in connection with the supply of the hardware and/or software; or their use or resale by the Buyer; or the supply of any advice and/or consultancy services by E-ZU; or otherwise.
10.2 Except as may otherwise be expressly provided, E-ZU’s liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or otherwise shall not under any circumstances, save as set out in clause 10.1, exceed the aggregate price payable by the Buyer under this Contract. If the Buyer does not consider that this limit is sufficient to protect its interests, the Buyer should contact E-ZU and E-ZU will be pleased to discuss with the Buyer whether it is able to amend this limit. The Buyer accepts that E-ZU shall be entitled to charge the Buyer, and the Buyer shall pay, an additional fee for accepting any different limit if E-ZU agrees to do so.
11 Force Majeure
11.1 E-ZU shall not be liable for any loss or damage caused by delay in performance or non-performance of any of its obligations under any Contract where the same is caused by any event beyond E-ZU’s control including but not limited to an act of God, war, riots, insurrection, governmental or parliamentary prohibitions or enactments, import or export regulations, fires, flood, casualty, epidemic, strikes, lock-outs, cessation of labour, trade disputes, destruction or shut-down of production facilities, shortage or curtailment, delay or disruption in transportation, difficulties in obtaining labour or materials, breakdowns or accidents, financial requirements or manufacturing limitation imposed by third–party manufacturers, suppliers or vendors. Should any such event occur, E-ZU may cancel or suspend this Contract without incurring any liability for any loss or damage caused thereby, and E-ZU shall be entitled to recover all monies owing to them in respect of deliveries made or services performed prior to any such failure.
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by E-ZU of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 This Contract is governed by and construed in accordance with the laws of England and Wales, and the parties submit the resolution of any dispute to the exclusive jurisdiction of the courts of England and Wales.