Terms & Conditions

 

These terms and conditions set out the agreements between Customer and SBS for the purchase

of the Programme from SBS.

1. Definitions

1.1 ‘Customer’ means the firm or company who purchases any Programme, Kit, Product or

Services from SBS;

1.2 ‘Programme’ means SBS’s specific offering of Kit, Products, and the Integration Services

1.3 ‘Delivery’ means delivery of the Programme, Kit, Product or Services in accordance with

condition 3;

1.4 ‘Documentation’ means the operating manuals, technical literature and all other related

materials from SBS and SBS’ Partner;

1.5 ‘Installation Services’ means SBS Partner’s services in installing the Kit and the Individual

Products for Customer.

1.6 ‘Integration Services’ means the fully managed service provided by SBS or the SBS

Partner to Customer that will provide all the sourcing, sales, equipment distribution,

Installation Services, in-service support, Warranty Obligations, administration and product

exchange services;

1.7 ‘Order’ means the order submitted by Customer for the Programme, Kit, Product or

Services to SBS

1.8 ‘Order Confirmation’ means the email confirmation of an Order to be sent by SBS to

Customer;

1.9 ‘Products’ or ‘Individual Products’ means the individual component parts of the

Programme, including hardware and spare parts;

1.10 ‘Kit’ means the specified aggregation of products, software and documentation available

on the order portal;

1.11 ‘Order Portal’ means the web portal provided by SBS to Customer for the purposes of

ordering the Programme, Kit, Products or Services;

1.12 ‘Third Party Software’ means the software programs proprietary to third parties [which are

to be provided to Customer without modification];

1.13 ‘SBS’ means Snap-on Business Solutions Ltd (Registration No: 1402893) trading as

“Snap-on Business Solutions”, whose principal place of business is at Imperium

Imperial Way, Reading RG2 0TD England;

1.14 ‘SBS Partner’ means the third party service provider and/or supplier of Products,

Software and Individual Products engaged by SBS to provide the Integration Services

and the Products, Software and Individual Products;

1.15 ‘Warranty Obligations’ means the product warranty obligations to Customer to repair or

replace Products, Software and/or Individual Products.

2. Basis of Sale, Order and Supply

2.1 These conditions, the Order Confirmation and Invoice set out the whole agreement

between SBS and Customer for the provision of the Programme and supersede all other

previous agreements between SBS and Customer.

2.2 No variation to these Conditions shall be binding unless agreed in writing between the

authorised representatives of the Customer and SBS.

2.3 Customer will submit an Order to SBS, normally via the Order Portal provided, specifying

the Programme, Kits, Products or Services that the customer wants to purchase

2.4 SBS will notify Customer via email that the Order has been submitted for processing.

SBS will provide the Order Confirmation to Customer and until such time there shall be

no binding contract between the parties.

2.5 SBS will endeavour to ensure the accuracy of all information. Any typographical, clerical

or other error or omission in any sales literature, quotation, price list, acceptance of offer,

invoice or other document or information issued by SBS or an SBS partner shall be

subject to correction without any liability on the part of SBS.

2.6 No Order which has been accepted by SBS may be cancelled by the Customer except

with the agreement in writing of SBS and on terms that the Buyer shall indemnify SBS in

full against all loss (including loss of profit), costs (including the cost of all labour and

materials used), damages, charges and expenses incurred by SBS as a result of

cancellation.

3. Delivery

3.1 SBS will deliver the Kit or Products ordered to the delivery address designated by the

Customer.

3.2 Delivery shall be deemed to have occurred when the Programme, Kit or Products are

delivered to the Customer at the delivery address designated by the Customer.

3.3 Any dates quoted for delivery of the Kit, Products or Services are approximate only and

SBS shall not be liable for any delay in delivery of such; however caused. Time for

delivery shall not be of the essence of the Contract unless previously agreed by the

authorised representative of SBS in writing. The Products, Kit or Services may be

delivered in advance of the quoted delivery date.

3.4 The Seller may deliver the Kit, Products or Services in instalments, in which case each

delivery shall constitute a separate contract and failure by SBS to deliver any one or more

of the instalments in accordance with these Conditions or any claim by the Customer in

respect of any one or more instalments shall not entitle the Customer to treat the Contract

as a whole as repudiated.

3.5 If SBS fails to deliver the Kit, Products or Services (or any instalment) for any reason

other than any cause beyond SBS’s reasonable control or the Customer’s fault, and SBS

is accordingly liable to the Customer, SBS’s liability shall be limited to the excess (if any)

of the cost to the Customer (in the cheapest available market) of similar Kit, Products or

Services to replace those not delivered over the price of the Kit, Products or Services.

3.6 If the Customer fails to take delivery of the Kit, Products or Services or fails to give SBS

adequate delivery instructions at the time stated for delivery (otherwise than by reason of

any cause beyond the Customer’s reasonable control or by reason of SBS’s fault) then,

without limiting any other right or remedy available to SBS, SBS may:

 (a) store the Kit, Products or Services until actual delivery and charge the Customer

for the reasonable costs (including insurance) of storage and re-delivery; or

(b) sell the Kit, Products or Services at the best price readily obtainable and (after

deducting all reasonable storage and selling expenses) account to the Customer

for the excess over the price under the Contract or charge the Customer for any

shortfall below the price under the Contract.

4. Installation Services (When applicable)

4.1 If Installation Services are required then SBS or a SBS Partner will contact the Customer

to arrange a suitable time and date at Customer’s designated location.

4.2 SBS will use reasonable endeavours to ensure that the provision of the Installation

Services occur within a reasonable period of time after the date of Delivery.

4.3 SBS reserves the right to cancel or abandon the provision of the Installation Services or

procure a “limited installation” for the Customer. Neither SBS nor the SBS Partner will be

liable to Customer for any losses, penalties damages or otherwise that it incurs as a

result of the cancellation or abandonment of the Installation Services, provided that such

causes are outside of the control of SBS and/or the SBS Partner or an Event of Default.

Events of Default include (but are not limited to) the following:

(a) Customer has not prepared the site for installation in accordance with

instructions; or

(b) Customer cancels the appointment for the Installation Services; or

(c) Despite SBS’ reasonable attempts, Customer cannot be contacted prior to the

agreed date of installation; or

(d) Where SBS has not received cleared funds prior to the date of installation, when

required under this Contract; or

(e) Customer’s suitably qualified representative fails to attend the installation

appointment.

4.4 In an Event of Customer Default, SBS reserves the right to charge [the unique market

rate for a rescheduled dealer installation plus a ten percent (10%) handling fee]. SBS

shall be under no obligation to complete installation until payment of this charge and all

other outstanding sums have been received by SBS.

4.5 SBS will, when applicable, provide or will procure that the SBS Partner provides

Customer with the Integration Services as described in condition 4.6 below and as set out

in the Order Confirmation. SBS reserves the right to vary any Integration Services

description at any time, however SBS shall inform Customer of such variations where

SBS deems necessary to do so and where reasonably practicable in the circumstances.

4.6 SBS will provide or will procure that the SBS Partner provides Customer with the

following services:

(a) Installation Services: SBS will install the Programme at Customer’s designated

location.

(b) Three (3) Year Programme Warranty Service: SBS will provide Customers with a

three (3) year warranty service for the Programme commencing on the date of

delivery. For the avoidance of doubt, this warranty does not cover the constituent

parts of the Programme which are manufactured by third party manufacturers.

Where the third party manufacturer’s warranty for a standard Product or

Individual Product or Software is less than three (3) years, Customer will be liable

for the cost of replacing or repairing the relevant Product or Individual Product or

Software.

(c) Third Party Warranty Obligations: SBS will procure for Customer the benefit of all

applicable third party manufacturer’s warranties in respect of the Kit and

Individual Products which comprise the Programme. As part of the Three (3)

Year Programme Warranty Service, SBS will deal with all third party warranty

issues on behalf of Customer, including procuring the replacement or repair of

the Kit or Individual Products in accordance with the terms of the applicable third

party manufacturer’s warranty.

(d) Programme Help Desk: SBS will operate a dedicated help desk to assist

Customer with any enquiry relating to ordering, payment, delivery, installation,

technical issues and service and warranty support. SBS will be the sole point of

contact for Customer and will deal with third party Warranty Obligations on behalf

of Customer.

(e) Software Support Services: From time to time, SBS may modify and update the

Software in the Programme to ensure that Customer has the most recent version

of the Programme.

5. Price and Payment

5.1 The price of the Programme shall be the amount and in the currency specified in the

Order Confirmation. The individual pricing of Kits and Products and Services includes

delivery charges as a separate line item. The delivery charge excludes all applicable

sales and importation taxes, these are the responsibility of Customer.

5.2 The method of payment shall be stated on the Order Confirmation and will be either:

(a) Pre-payment: SBS will provide Customer with an invoice together with the Order

Confirmation and Customer shall pay SBS the invoice amount in full and in

advance of Delivery; or

(b) Leasing: SBS will provide Customer’s nominated leasing company with an

invoice on Delivery which shall be payable by the leasing company, as arranged

between SBS, the leasing company and Customer; or

(c) Direct Billing: SBS will invoice directly to the customer on shipment of the

Products or Kit. The payment terms will be stated on the invoice.

5.3 No payment shall be deemed to have been received until SBS has received cleared

funds.

5.4 Customer (or its nominee) shall make all payments due under the Order Confirmation

and any additional costs incurred by SBS in relation thereto in full without any deduction

whether by way of set-off, counterclaim, discount, abatement or otherwise unless

Customer has a valid court order requiring an amount equal to such deduction to be paid

by SBS to Customer.

5.5 The time of payment shall be of the essence of the Contract. Receipts for payment will be

issued only upon request.

5.6 If the Customer fails to make any payment on the due date then, without limiting any

other right or remedy available to SBS, SBS may:

(a) cancel the Contract or suspend any further deliveries to the Customer;

(b) appropriate any payment made by the Customer to such of the Equipment (or

any equipment or services supplied under any other contract between the

Customer and SBS) as SBS may think fit (notwithstanding any purported

appropriation by the Customer); and

(c) charge the Customer interest (both before and after any judgment) on the

amount unpaid and statutory compensation in accordance with the Late Payment

of Commercial Debts Regulations 2002.

6. Risk and Title

6.1 The Kit and the Individual Products are at the risk of Customer from the time of Delivery.

Subject to condition 3, if Delivery is delayed at Customer’s request or the Customer

wrongly fails to take delivery then the risk shall pass to Customer on the date the Kit and

the Individual Products are ready for delivery.

6.2 Title to the Kit and the Individual Products shall not pass to Customer until SBS has

received payment in full (in cash or cleared funds) for:

(a) the Kit and the Individual Products; and

(b) any other products or services that SBS or an SBS Partner has supplied to

Customer and in respect of which payment has become due.

6.3 Until ownership of the Kit and the Individual Products has passed to Customer, Customer

shall:

(a) hold the Kit and the Individual Products on a fiduciary basis as SBS's bailee;

(b) store the Kit and the Individual Products (at no cost to SBS) separately from all

other products of Customer or any third party in such a way that it remains readily

identifiable as SBS's property and in a satisfactory condition;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to

the Kit and the Individual Products; and

(d) insure the Kit and the Individual Products, from the date of Delivery until title has

passed, in the joint names of SBS and Customer, and Customer shall pay the

premiums on this insurance.

6.4 SBS shall be entitled to recover payment for the Kit and the Individual Products

notwithstanding that ownership of the Kit and the Individual Products has not passed

from SBS.

6.5 For the avoidance of doubt, Customer is not permitted to sell or supply the Programme to

any third party and any such attempt will invalidate Customer’s right to receive the

Integration Services.

6.6 Customer is entitled to sell the purchased Kit to another Customer if connected with a

transfer of Customer’s business. On transfer the warranty on the Kit will cease with

immediate effect unless the Customer registers the Kit serial numbers and new Customer

details with SBS prior to the transfer.

7. Returns

7.1 SBS is not obliged to accept Kit or Product returned by the Customer that is not a

defective return for replacement. If SBS agrees to the return of the Kit or Product it shall

be on the following terms:

(a) the Customer first obtains a returns authorisation in writing from SBS;

(b) the Kit or Product is returned in suitable packaging, have not been used and are

returned undamaged and re-useable except for packaging;

(c) the Customer pays the cost of carriage for return and insurance;

(d) SBS may charge a re-stocking/handling fee of 15% of the invoice value of the Kit,

Products and any other Services provided in addition to cost of carriage for return

and insurance.

8. Obligations of Customer

8.1 Customer will:

(a) be responsible for the payment of all charges applicable to the Kit and/or

Individual Products and/or Integration Services (including charges incurred as a

result of an Event of Customer Default, fraud or unauthorised use of the

Integration Services by Customer);

(b) be responsible for the payment of all additional fees or charges arising from

Customer service and support requests above and beyond Customer's

entitlement as set forth in the Programme Manual;

(c) be responsible for the payment of all prior approved reasonable, billable travel

expenses in an Event of Customer Default;

(d) provide, if Integration Services are provided from Customer's premises or

location rented or hired by Customer, the following: (i) the level of power, heating

and air conditioning necessary to maintain the proper environment at Customer's

premises or the location rented or hired by Customer for the provision of the

Integration Services as required under any applicable Order Confirmation; (ii) a

safe, hazard free, place to work complying with all working condition laws and

regulations; and (iii) keeping SBS’ and/or the SBS Partner’s equipment free and

clear of any liens or encumbrances.

(e) use the Kit and/or Individual Products correctly and in accordance with the

Documentation;

(f) designate primary and secondary contacts appropriately qualified and trained to

an acceptable standard authorised to request Integration Services, and inform

SBS accordingly. Authorised use of the Programme Help Desk is limited to these

designated contacts;

(g) maintain procedures to facilitate reconstruction of any lost or altered files, data or

programs to the extent deemed necessary by Customer, and Customer agrees

that SBS will not be liable under any circumstances for any consequences arising

from lost or corrupted data, files or programs. Customer is solely responsible for

carrying out all necessary backup procedures for its own benefit, to ensure that

data integrity can be maintained in the event of loss of data for any reason;

(h) be solely responsible for the security of its confidential and proprietary

information, and not disclose such information to SBS except on a 'need to know'

basis for the purposes of SBS' performance of the Integration Services;

(i) notify First Level Support promptly of any Kit and/or Individual Product

malfunction;

(j) not open the box containing the Kit and Individual Products (the “Box”), if the Box

is so marked, until Customer is in the presence of SBS or the SBS Partner

conducting the Installation Service and Customer shall store the Box in a secure

location until such time. Notwithstanding the foregoing, Customer shall inspect

the Box within five (5) days of Delivery and report any transit damage to the Box

to the Programme Help Desk immediately;

(k) keep records of the Programme's usage and performance if requested by SBS, in

a mutually agreed format;

(l) provide SBS with access to and use of such of Customer's information and

facilities reasonably necessary to service the Kit and/or Individual Products;

(m) make all the relevant Kit and/or Individual Products freely available to SBS or the

SBS Partner during any agreed preventative maintenance period to enable SBS

or the SBS Partner to carry out the Integration Services;

(n) have a Customer representative who is familiar with Customer's organisation,

operations, procedures and business practices present at all times during the

performance of remedial and preventative maintenance Integration Services;

(o) provide ready access to a telephone at the site on which external calls connected

with the Integration Services can be made and received by SBS' or the SBS

Partner’s personnel;

(p) ensure that only properly trained employees operate or use the Programme in

accordance with the Documentation; and

(q) not make any modification or addition to the Programme, except with SBS' prior

written consent, which shall not be unreasonably withheld.

9. Warranty and Liability

9.1 Notwithstanding any SBS Partner or third party manufacturer warranty that accompanies

the Kit and the Individual Products, SBS warrants that:

(a) as at the date of Delivery, the Kit and the Individual Products correspond with

their description, are fit for their intended purpose and are free from material

defects; and

(b) it will use (or procure the use of) all reasonable skill and care in the provision of

the Integration Services.

9.2 SBS is not liable for any damage to the Kit and/or Individual Products which would have

been evident from a reasonable inspection of the unopened Box but which was not

reported by Customer to SBS in accordance with condition 8.1(j). SBS is liable for:

(a) non-correspondence of the Kit and the Individual Products with their description;

(b) shortages in the quantity stated in the Order Confirmation; or

(c) a defect in the Kit and/or the Individual Products,

which are apparent on reasonable inspection at the time that the Installation Services are

performed by the SBS Partner.

9.3 If SBS is liable under condition 9.2, SBS will replace or repair the Kit and/or the Individual

Products or make good any shortage in quantity in accordance with the relevant

Warranty Obligations. Kit and the Individual Products shall only be returned to SBS with

SBS’s express prior written confirmation in accordance with SBS Returns policy

[condition 7].

9.4 ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS EXPRESS OR

IMPLIED BY STATUTE OR OTHERWISE (SAVE FOR SECTION 12 OF THE SALE OF

GOODS ACT 1979) ARE, TO THE FULLEST EXTENT PERMITTED BY LAW,

EXCLUDED FROM THESE CONDITIONS, except that nothing in these conditions shall

restrict SBS’s liability:

(a) for death or personal injury resulting from SBS’s negligence; or

(b) under section 2 of the Consumer Protection Act 1987; or

(c) for any matter which it would be illegal for SBS to exclude or attempt to exclude

its liability; or

(d) for fraudulent misrepresentation.

9.5 Subject to condition 9.4, SBS is not liable to Customer for loss of profit, loss of business,

or depletion of goodwill 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 supply of the Programme. The entire liability of SBS arising in

connection with the performance or non-performance of its obligations under an Order

Confirmation is limited to the invoice cost of the Kit and the Individual Products.

10. Data Protection

10.1 For the avoidance of doubt, the parties agree that all data and information passed to SBS

by Customer or generated in the course of the Integration Services will remain at all times

the property of Customer. Customer grants to SBS a non-exclusive, royalty-free licence

to use Customer's data, information as necessary for the purpose of fulfilling SBS'

obligations under these conditions.

10.2 SBS will not acquire any right in Customer's data and information. SBS will take all

necessary steps to ensure that it will not use nor reproduce any such data and

information which comes into its possession or control except as required to provide the

Integration Services under these conditions.

10.3 Customer will be responsible for maintaining secure copies and backups of all data and

information.

10.4 In providing the Integration Services to Customer, SBS will comply with all relevant

provisions of the Data Protection Act 1998 ('DPA'). SBS and Customer agree and

acknowledge that, in performing the Integration Services, SBS is acting as a Data

Processor (as defined in the DPA) in relation to any Personal Data (as defined in the

DPA) for and on behalf of Customer, who remains the Data Controller (as defined in the

DPA) in relation to such Personal Data, and without limitation to the foregoing, SBS will:

(a) process Personal Data only in accordance with the written instructions of

Customer;

(b) take all appropriate measures to ensure that the Personal Data is kept secure

and is not subject to any unauthorised processing, loss, destruction or damage;

 (c) ensure that its personnel and contractors are made aware of its obligations under

these conditions with regard to the security and protection of the Personal Data;

(d) provide Customer, at its reasonable request, with evidence of compliance with

SBS's obligations under this condition 10;

(e) assist Customer to comply with any valid requests for access to Personal Data

received by Customer;

(f) notify Customer if SBS receives any requests for access to Personal Data and

comply with Customer's instructions in this connection;

(g) notify Customer of any unauthorised or unlawful disclosure or use of Personal

Data of which SBS becomes aware; and

(h) at the request and option of Customer, promptly return or safely destroy all

Personal Data in SBS' possession or control.

11. Force Majeure

SBS shall not be under liability of whatever kind for any failure to provide the Programme

or any part thereof due to causes beyond the control of SBS including but not limited to

war, riot or other civil disobedience, supplier or other third party failure, acts of

government or any agency or sub-division thereof, labour dispute, lock-out, strikes,

embargoes, accident, fire, explosion, flood or other acts of God, delay in delivery to SBS,

shortage of labour or materials. In any such event SBS may without liability cancel the

Order Confirmation or extend the time of performance of the Order Confirmation for a

period at least equal to the time lost by reason of such causes.

12. General

12.1 SBS may assign this Contract and corresponding Order Confirmation or any part of it to

any person, firm or company. Customer is not entitled to assign this Contract or the Order

Confirmation or any part of it without the prior written consent of SBS.

12.2 This Contract together with the Order Confirmation is the entire agreement between the

parties as to the subject matter hereof and may only be amended in a writing signed by

each party’s authorised representative.

12.3 Failure or delay by SBS in enforcing or partially enforcing any provision of these

conditions will not be construed as a waiver of any of its rights under these conditions.

12.4 Any waiver by SBS of any breach of, or any default under, any provision of these

conditions by Customer will not be deemed a waiver of any subsequent breach or default

and will in no way affect the other terms of these conditions.

12.5 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 condition in question shall not be affected.

12.6 A person who is not a party to these conditions shall have no right under the Contracts

(Rights of Third Parties) Act 1999 to enforce any term of these conditions.

12.7 The formation, existence, construction, performance, validity and all aspects of this

Contract and the Order Confirmation and these conditions shall be governed by English

law and the parties submit to the non-exclusive jurisdiction of the English courts.

Snap-on Business Solutions GT&C – Dated 12th November 2012 – Version 1