ABM BUSINESS MACHINES LIMITED trading as ABM
TERMS & CONDITIONS OF SUPPLY
1 DEFINITIONS
1.1 "ABM" means Avon Business Machines Limited trading as ABM, 7 Church Street Trowbridge,
Wiltshire BA14 8DR or any subsidiary or associated company.
1.2 "Customer" means the party identified as the customer in the agreement to whom ABM may agree
to supply products in accordance with these terms and conditions.
1.3 "Products" means goods and services including but not limited to computer hardware and software
items to be provided by ABM to the customer in accordance with these terms and conditions.
1.4 "Third Party Software" means all software owned by or licensed to the customer from a third party
owner (whether or not supplied by ABM) and which comprises a part of the products.
2 ORDER ACCEPTANCE
2.1 All orders placed with ABM by the customer for products shall constitute an offer to ABM, under
these terms and conditions, subject to availability of the products and to acceptance of the order by
ABM’s authorised representative.
2.2 All orders are accepted and products supplied subject to these express terms and conditions only.
No amendment of these terms and conditions will be valid unless confirmed in writing on or after the
date hereof by ABM’s authorised representative.
2.3 It is agreed that these terms and conditions prevail over the customer’s terms and conditions of
purchase unless these later terms and conditions are amended by ABM in writing and signed by ABM.
3 INDEPENDENT CONTRACTOR
The relationship between the supplier and customer is that of independent contractor. Neither party
is the agent of the other, and neither party has any authority to make any contract or make any
obligation expressly or implied in the name of the other party without that party’s prior written
consent for express purposes connected with the performance of this agreement.
4 DESPATCH
4.1 Any time quoted for despatch is to be treated as an estimate only, but despatches may be
postponed because of circumstances beyond ABM’s reasonable control, and in no event shall ABM
be liable for any damages or penalty for delay in despatch or delivery.
4.2 Risk shall pass to the customer at the time the products are despatched by ABM. ABM accepts no
liability for loss or damage caused by the carrier.
4.3 If products have not been received, the customer must notify ABM within 7 days of the date of the
invoice. If proof of delivery is required, this must be requested within 14 days of the date of the
invoice.
5 CANCELLATION AND RESCHEDULING
Subject to clause 8.2, any request by the customer for cancellation of any order or for rescheduling
of deliveries will only be considered by ABM if made at least 12 working hours before despatch of
the products and shall be subject to acceptance by ABM at ABM’s sole discretion, and subject to a
reasonable administration charge therefore by ABM. The customer hereby agrees to indemnify
ABM against all loss, costs (including the cost of labour and materials used and overheads
incurred), damages, charges and expenses arising out of the order and cancellation or rescheduling.
6 PRICES
6.1 Catalogues, price lists and other advertising literature or material as used by ABM are intended only
as an indication as to price and range of goods offered and none of the prices, descriptions or
other particulars contained therein shall be binding on ABM.
6.2 All prices are given by ABM at the time of the order of an ex-works basis and the customer is liable
to pay for transport, packing and insurance.
6.3 All quotes or listed prices are based on the cost to ABM of supplying the products to the customer.
If before delivery of the products there occur any increase in any way of such cost in respect of
products, which have not yet been delivered, the price payable may be subject to amendment
without notice at ABM’s discretion.
6.4 All prices are subject to value-added tax and any similar taxes. All such taxes are payable by the
customer and will be applied in accordance with UK legislation in force at the tax point date.
7 PAYMENT TERMS
7.1 Invoices will be raised and dated by ABM on the date of despatch of the products. Unless otherwise
specifically negotiated and agreed, invoices will be payable by the customer 7 days from the date of
the invoice. Payments which are not received when payable will be considered overdue and remain
payable by the customer together with interest for late payment from the date payable at the rate of
4% per annum above the base rate for the time being of the Barclays Bank plc. Such interest shall
accrue on a daily basis and be payable on demand after as well as before judgement.
7.2 When all prices, taxes and charges due in respect of the products and any products supplied
previously to the customer have been paid in full, title to hardware products only shall pass to the customer.
7.3 Notwithstanding despatch and the passing of risk in the products to the customer pursuant to
clause 4, or any other provision of these conditions, the property in the hardware products shall not
pass to the customer until ABM has received in cash or cleared funds payment of the price of the
products agreed to be sold by ABM to the customer to which payment is then due.
7.4 Until such time as the products pass to the customer, the customer shall hold the products as
ABM’s fiduciary agent and bailey, and shall keep the products properly stored, protected and
insured and identified as ABM’s property. Until that time the customer shall be entitled to resell or
use the products in the ordinary course of its business, but shall account to ABM for the proceeds of
sale or otherwise of the product. Whether tangible or intangible, including insurance proceeds, and
shall keep all such proceeds separate from any moneys or property of the customer and third
parties and, in the case of tangible proceeds, properly stored protected and insured.
7.5 Until such time as the property in the products passes to the customer (and provided the products
are still in existence and have not been resold), ABM shall be entitled at any time to require the
customer to deliver up the products to ABM and, if the customer fails to do so forthwith, to enter
upon any premises of the customer or any third party where the product are stored and repossess the products.
7.6 The customers power of sale or right to use such products shall immediately cease if an
Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated bankrupt
or enter into liquidation whether compulsory or voluntary, or if the customer makes an arrangement
with the creditors, or generally becomes unable to pay its debts within the meaning of the insolvencyact 1986.
7.7 On termination of the customer’s power of sale or right to use the products the customer will
immediately hold the products to the order of ABM.
7.8 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 ABM, but if the customer does so, all
moneys owed by the customer to ABM shall (without prejudice to any other right or remedy of the
seller) forthwith become due and payable.
7.9 ABM reserves the right to cease supplies of products to the customer at any time. On such
cessation of supplies, ABM reserves the right to withdraw any credit facility such that the whole of
the customer’s account becomes due for payment forthwith.
8 SPECIFICATION OF PRODUCTS
8.1 ABM will not be liable in respect of any loss or damage caused by or resulting from any variation for
whatsoever reason in the manufacturer’s specifications or technical data and will not be held
responsible for any loss or damage resulting from curtailment or cessation of supply following such
variation. ABM will use its reasonable endeavours to advise the customer of any such impending
variation as soon as it receives any notice thereof from the manufacturer.
8.2 Unless otherwise agreed, the products are supplied in accordance with the manufacture’s standard
specifications as these may improved, substituted or modified. ABM reserves the right to increase
its quoted or listed price or to charge accordingly in respect of any orders accepted for products or
of non-standard specification and in no circumstances will it consider cancellation of such orders or
the return of the products.
9 PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
9.1 The customer hereby acknowledges that any proprietary rights in any Third Party Software supplied
hereunder including but not limited to any title or ownership rights, patent rights, copyrights and
trade secret rights, shall at all times and for all purposes vest and remain vested in the Third Party software owner.
9.2 The customer hereby acknowledges that it is its sole responsibility comply with any terms and
conditions of licence attaching to Third Party Software supplied and delivered by ABM (including if
so required the execution and return of a Third Party Software licence). The customer is hereby
notified that 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. The customer
further agrees to indemnify ABM in respect of any costs, charges or expenses incurred by ABM at
the suit of a Third Party Software owner as a result of any breach by the customer of such conditions.
9.3 The customer hereby acknowledges that it is their sole responsibility for the backing up of data
contained on products given to ABM for upgrades, servicing maintenance etc.
9.4 NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD PARTY SOFTWARE
LICENSED TO THE CUSTOMER UNDER THIS AGREEMENT IS TRANSFERRED TO THE
CUSTOMER UNDER ANY CIRCUMSTANCES.
9.5 ABM reserves the right to refuse to reload any PC brought in for repair unless legal copies of software are provided.
10 RETURNS
10.1 ABM reserves the right to levy an administration charge in respect of the rotation of products andreturns.
10.2 Returns may be made subject to the following: -
(a) prior authority having been obtained from ABM which will be given at ABM’s sole discretion;
(b) within 30 days of the date of the invoice;
(c) subject to stock rotation policy;
(d) the products must be properly packed;
(e) the products must be in a saleable condition;
(f) the products must be accompanied by a detailed packing list;
(g) the product is covered by warranty (see section 11).
10.3 ABM reserves the right to reject any products returned which do not comply with the conditions set
out in clause 10.2.
10.4 If ABM nevertheless agrees to accept any products returned in a non-saleable condition, ABM
reserves the right to charge the cost to the customer of bringing the product to a saleable condition.
11 WARRANTY
11.1 ABM warrants that it has good title to or licence to supply all products to the customer.
11.2 If any part of the hardware products should prove defective in materials or workmanship under
normal operation or service, such products will be repaired or replaced only in accordance with any
warranty cover and terms provided by the manufacturer of the products PROVIDED THAT no
unauthorised modifications to the product or system or to the system of which the product forms
part have taken place. ABM is not responsible for the cost of labour or other expenses incurred in
repairing or replacing defective or non conforming parts.
11.3 All software products supplied hereunder are supplied “as is” and the sole obligation of ABM in
connection with the supply of software products is to use all reasonable endeavours to obtain and
supply a correct version from the manufacturer concerned in the event that any such software
product should fail to confirm to its product description PROVIDED ALWAYS THAT the customer
notifies ABM of any such nonconformity within 90 days of the date of delivery of the applicable software product.
11.4 If the products are rejected by the customer as not being in accordance with the customer’s order
pursuant to clause 11.2 or 11.3, ABM will only accept the return of such products provided that it
receives written notification thereof giving detailed reasons for rejection. ABM will not consider any
claim for compensation, indemnity or refund until liability, if any, has been established or agreed
with the manufacturer and where applicable the insurance company. Under no circumstances shall
the invoiced products be deducted or set off by the customer until ABM has passed a corresponding credit note.
11.5 EXCEPT AS SPECIFICATION SET OUT IN THIS CLAUSE 11, ABM DISCLAIMS AND EXCLUDES
ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF
DEALING, USAGE OR TRADE PRACTICE.
11.6 All machines have a Return to Base warranty unless otherwise stated.
12 INTIMIDATES AND LIMITS OF LIABILITY
12.1 ABM will indemnify the customer for direct physical injury or death caused solely by defects in any
of the products or caused solely by the negligence of its assigned employees acting within the
course of their employment and the scope of their authority.
12.2 ABM will indemnify the customer for direct damage to property caused solely by defects in any of
the product or caused solely by the negligence of its assigned employees acting within the course of
their employment and the scope of their authority. The total liability of ABM under this sub-clause
shall be limited to £100,000 for any one event or series of connected events.
12.3 Except as stated in clause 12.1 and 12.2 above, ABM disclaims and excludes all liability to the
customer in connection with these terms and conditions including the customer’s use of the
products and in no event shall ABM be liable to the customer for special, indirect or consequential
damage including but not limited to loss of profits or arising from loss of data in connection with the
use of the products. All terms of any nature, express or implied, statutory or otherwise as to
correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.
12.4 The customer shall indemnify and defend ABM and its employees in respect of any claims by third
parties which are occasioned by or arise from any ABM performance or non performance pursuant
to the instructions of the customer or its authorised representative.
12.5 ABM accepts no responsibility for any hardware belonging to the customer whilst in our possession
either under inspection, service, maintenance, upgrades etc.
13 TERMINATION FOR CAUSE
This agreement may be terminated forthwith by notice in writing:
13.1 By ABM if the customer fails to pay any sums due hereunder by the due date notwithstanding
provisions for late payment in clause 7.1.
13.2 If either party fails to perform any of its obligations under this agreement and such failure continues
for a period of 14 days after written notice thereof, by the other party;
13.3 If either 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 purposes of an amalgamation or reconstruction, or
makes an arrangement with its creditors or petition 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 Insolvency Act 1986, then without prejudice to any other rights
or remedies available to it, the other party shall have the right to terminate this agreement forthwith.
13.4 Any termination of this agreement pursuant to this clause shall be without prejudice to any other
rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued or liabilities of either party.
14 EXPORT AND/OR RE-EXPORT LIMITATION
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 ABM of an ultimate destination
for any products, the customer will not export or re-export directly any products without first
obtaining all such written consents or authorisations as maybe required by any applicable
government regulations.
15 CONTRACTS
15.1 The headings in this agreement are for ease of reference only and shall not affect its interpretationor 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 customer agrees not to assign any of its rights herein without the prior written consent of ABM.
15.4 In the event of any of these terms and conditions or any part of any of them being judged illegal or
unenforceable for any reason, the continuation in full force and effects of the remainder of themshall not be prejudiced.
15.5 Neither party shall be liable to the other for any delay in or failure to perform its obligations
hereunder (other than a payment of money) where such delay of failure results from force majeure,
act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonablecontrol.
15.6 Any documents or notices given hereunder by either party to the other must be in writing and maybe
delivered personably or by recorded delivery or registered post and in the case of post will be
deemed to have been given two working days after the date of posting. Documents or notices shall
be delivered or sent to the addresses of the parties on the first page of this agreement 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 after the date of this agreement.
15.7 These terms and conditions shall be governed and construed in accordance with English law