The Customer's attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions. 1.1 Definitions: Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with the Quotation, the Order and these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: the products and materials developed and supplied by the Supplier for the Customer in any media, including, without limitation, computer programs, data, diagrams, reports and specifications (including drafts).
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 17.
Goods: the goods (or any part of them) described in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, which is agreed by the Customer and the Supplier and set out in the Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related 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.
Manufacturer: means a third party who makes or develops the Goods.
Manufacturer Warranty: means the warranty provided by the Manufacturer of the Goods.
Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form by reference to the Supplier’s Quotation or the Customer's written acceptance of the Supplier's Quotation as the case may be.
Quotation: the Supplier’s quotation describing the Goods, Services and their cost to be supplied to the Customer.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description and specification for the Services, including any agreed service levels, provided by the Supplier to the Customer and set out in the Quotation.
Supplier: BlueSky Systems Limited registered in England and Wales with company number 08856125 and whose address for the purpose of giving written notices pursuant to these Conditions is Dorset House, Regent Park, 297-299 Kingston Road, Leatherhead, KT22 7PL, and email address is notices@blueskysystems.co.uk.
Supplier Materials: has the meaning given in clause 8.1(h).
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2 Interpretation: (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). (b) A reference to a party includes its personal representatives, successors and permitted assigns. (c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. (d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. (e) A reference to writing or written includes email but not fax.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services as detailed in the Supplier’s Quotation in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or descriptions of the Services issued by the Supplier are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Unless otherwise agreed in writing, any Quotation given by the Supplier will not constitute an offer, and is only valid for a period of 30 Days from its date of issue (or as otherwise identified on the quotation).
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. Goods
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery of Goods
4.1 The Supplier shall ensure that: (a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code or serial numbers of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and (b) it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods: (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and (b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Quality of Goods
5.1 Subject to clauses 5.2 and 5.5 the Supplier warrants that on delivery, and for a period of 14 days from the date of delivery (warranty period), the Goods shall: (a) conform in all material respects with their description and the Goods Specification; (b) be free from material defects in design, material and workmanship; (c) be fit for any purpose held out by the Supplier.
5.2 The warranty referred to in Clause 5.1 above does not replace any Manufacturer Warranty from which the Goods benefit that will remain in place for the period specified by the relevant Manufacturer.
5.3 Subject to clause 5.4, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if: (a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; (b) the Supplier is given a reasonable opportunity of examining such Goods; and (c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost.
5.4 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if: (a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.3; (b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; (c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer; (d) the Customer alters or repairs such Goods without the written consent of the Supplier; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or (f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.5 After the expiry of the warranty period referred to in clause 5.1 above the Customer shall rely on the Manufacturer Warranty for any defects subsequently arising in the Goods.
5.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of: (a) the Supplier receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer of all such sums; and (b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall: (a) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery; (c) notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(d); and (d) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time: (a) it does so as principal and not as the Supplier’s agent; and (b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(d), then, without limiting any other right or remedy the Supplier may have: (a) the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and (b) the Supplier may at any time: (i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Supply of Services
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. Customer's obligations
8.1 The Customer shall: (a) ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate; (b) co-operate with the Supplier in all matters relating to the Services; (c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services; (d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is promptly provided, complete and accurate in all material respects; (e) prepare the Customer's premises for the supply of the Services; (f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; (g) comply with all applicable laws, including health and safety laws; (h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and (i) comply with any additional obligations as set out in the Service Specification and the Goods Specification;
8.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default): (a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations; (b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and (c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. Complaints
9.1 In the event that a Customer has a complaint about the Goods, Deliverables or Services they have received the following procedures shall apply: (a) Complaints about Goods or Deliverables should be made to the Supplier in writing within 14 days of their delivery taking place; (b) Complaints about Services must be made to the Supplier in writing within 14 days of their delivery; (c) Complaints about technical support response times must be made in writing immediately to the Supplier;
9.2 In all cases complaints must describe or explain the substance of the complaint in sufficient detail to enable the Supplier to take the appropriate steps to remedy the problem.
9.3 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event will start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire one month after that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10. Charges and payment
10.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of the order; and
10.2 The charges for Services shall be calculated on a time and materials basis: (a) the charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in its current price list at the date of the Contract or set out in the Order; (b) the Supplier's daily fee rates on Business Days for each individual person assigned to a task are calculated on the basis of a total of eight consecutive hours worked (with an allowance of up to one hour for lunch breaks) between 08:00 hrs and 20:00 hrs; (c) the Supplier shall be entitled to charge an overtime rate on Business Days of 50% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 10.2(b) and for all hours worked at weekends; and (d) on bank holidays or on Easter Sunday the Supplier shall be entitled to charge double the daily fee rate; and (e) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials. (f) the Supplier shall be entitled to charge a fee for the cancellation of pre-booked Services: (i) 100% if the Services are cancelled within two Business Days; (ii) 50% if the Services are cancelled within five Business Days;
10.3 The Supplier reserves the right to: (a) increase the charges for the Services any other costs associated with providing the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date; (b) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to: (i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or (iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
10.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services or monthly in arrear or in staged payments based on the quoted work, as appropriate.
10.5 The Customer shall pay each invoice submitted by the Supplier: (a) within 25 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and (b) in full and in cleared funds to a bank account nominated in writing by the Supplier (please note for the avoidance of doubt that cash and cheques are not cleared funds and as such are not an acceptable method of payment), and time for payment shall be of the essence of the Contract.
10.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
10.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 15 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.7 will accrue each day at 8% a year.
10.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11. Returns
11.1 All returns of Products can only be made and will only be accepted by BLUE SKY SYSTEMS if they comply with the following:
a. prior authorisation must be obtained from BLUE SKY SYSTEMS via BLUE SKY SYSTEMS’s after-sales management tool or such other method as BLUE SKY SYSTEMS may advise. Such prior authorisation shall be given at BLUE SKY SYSTEMS’s sole discretion;
b. the request for the return must comply with the rules specified in BLUE SKY SYSTEMS’s after-sales management tool;
c. the Products in issue must be returned within 14 days of the authorisation to return under Clause 1(a);
d. the Products must be properly and securely packed with the relevant returns reference and document attached and either be delivered to the address on the authorisation or be made available for collection by BLUE SKY SYSTEMS’s carrier, as determined by BLUE SKY SYSTEMS;
e. for non-faulty Products, the Products must be in their original condition, unopened and with original seals intact. Products that are not faulty may be subject to £25 or 10% whichever is greater of the product value restocking fee;
f. for faulty Products, the Products must be in breach of the warranty in Clause 11.2 of the BLUE SKY SYSTEMS Terms and Conditions.
11.2 BLUE SKY SYSTEMS reserves the right to reject any Products which do not comply with the conditions set out in Clause 1. If BLUE SKY SYSTEMS agrees to accept any non-faulty Products returned which are not in their original condition, BLUE SKY SYSTEMS reserves the right to charge the cost to the Buyer of bringing the non-faulty Products into a saleable condition.
11.3 BLUE SKY SYSTEMS reserves the right to test all Products returned as faulty and to return to the Buyer (at the Buyer’s expense) any Products found not to be faulty. BLUE SKY SYSTEMS also reserves the right to levy an additional reasonable charge to cover the cost of such testing.
11.4 BLUE SKY SYSTEMS reserves the right to levy an administration charge in respect of the rotation of Products and returns.
12. Acceptance of Services, Inspection of Products,Notification of Defects
12.1 Buyer will promptly accept in written form or Electronically any work product created and delivered by BLUE SKY SYSTEMS that is conforming with the agreement between the parties. Buyer may not reject acceptance of such delivered work product in case of nonmaterial defects. Work product shall be deemed accepted by Buyer if it is not rejected in written form or Electronically within 7 days from the notification of the completion and delivery of the work product by BLUE SKY SYSTEMS, naming at least one material defect. BLUE SKY SYSTEMS shall solely decide whether the defect rises to the level of “material defect”.
12.2 Buyer shall inspect any Products promptly upon delivery for quantity deviations, damaged packaging, labelling errors, visible defects in quality and any other visible damage. If the delivered Products or packages show any visible defects Buyer must note this on the proof of the delivery document (“POD”). Additionally, Buyer must notify BLUE SKY SYSTEMS Electronically of these visible defects promptly, however, not later than 7 days from the delivery date. This note must provide a sufficiently clear description of the defects (including pictures). Buyer shall sign the POD immediately upon examination of the Products.
12.3 Any rights of Buyer regarding any defects not notified to BLUE SKY SYSTEMS in accordance with Clause
12.2 shall be permanently excluded. The preceding sentence shall not apply to the extent a defect could not have been detected in the inspection in accordance with Clause 10.2 should it have been duly performed (concealed defects or damage).
12.4 Buyer must notify BLUE SKY SYSTEMS Electronically of any concealed defects or damage not detected in the due inspection in accordance with Clause 10.2 promptly, however, not later than 7 days from the date of detection. This notification must provide a sufficiently clear description of the defects or damage (including pictures). Any rights of Buyer regarding any defects not notified to BLUE SKY SYSTEMS in accordance with the preceding sentence shall be permanently excluded.
12.5 The defect notification process shall be subject to BLUE SKY SYSTEMS’s Return Policy, if applicable, with Clause 11.
13. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.4 Subject to clause 14.3, the Supplier's total liability to the Customer shall not exceed the lesser of either the price agreed for the Goods and Services in question or the total value of Services invoiced to the Customer within the preceding 12 months.
13.5 This clause 14.5 sets out specific heads of excluded loss and exceptions from them: (a) Subject to clause 14.3, the types of loss listed in clause 14.5(b) are wholly excluded by the parties. (b) The following types of loss are wholly excluded: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.
13.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.7 This clause 13 shall survive termination of the Contract.