The Customer’s attention is particularly drawn to the provisions of clause 14 (Limitation of liability).
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:Ds Total Solutions Limited. Registered in England and Wales. Company No. 11230579 and whose address for the purpose of giving written notices pursuant to these Conditions is: Registered Office: 591 London Road, North Cheam, Surrey, SM3 9AG.
Trading Office:Berkeley House, Hunts Rise, South Marston Industrial Estate Swindon Wiltshire SN3 4TG. United Kingdom. Phone: 01793 268879, and email address is info@ds-totalsolutions.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:
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 is given by the Supplier will not constitute an offer, and is only valid for a calendar month 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.
3.1. 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.
4.1. The Supplier shall ensure that:
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:
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 in 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.
5.1. 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:
5.2. The warranty referred to in Clause 5.1 above does not replace any Manufacturer’s 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:
5.4. The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
5.5. After the expiry of the warranty period referred to in clause 5.1 above the Customer shall rely on the Manufacturer’s 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.
6.1. 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:
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
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:
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:
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.
8.1. The Customer shall:
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):
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:
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.
10.1. 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 of the date of the order; and
10.2. The charges for Services shall be calculated on a time and materials basis:
10.3. The Supplier reserves the right to:
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. 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.
10.6. 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).
11.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
11.2. The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
11.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 11.2.
11.4. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
12.1. Both parties will comply with all applicable requirements of the UK Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the UK Data Protection Legislation.
12.2. The parties acknowledge that for the purposes of the UK Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
12.3. The Supplier’s UK Data Protection and Privacy Policy is set out on its website https://ds-totalsolutions.co.uk/privacy-policy.
13.1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
Each party may disclose the other party’s confidential information:
13.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
14.1. 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.
14.2. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
14.4. 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.
14.5. This clause 14.5 sets out specific heads of excluded loss and exceptions from them:
14.6. 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.
14.7. This clause 14 shall survive termination of the Contract.
15.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.2. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
15.3. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16.1. On termination of the Contract:
16.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances, or causes beyond its reasonable control (a Force Majeure Event).
18.1. Assignment and other dealings
18.2. Notices:
18.3. Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 18.3 shall not affect the validity and enforceability of the rest of the Contract.
18.4. Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.5. No partnership or agency: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.6. Entire agreement:
18.7. Third-party rights:
18.8. Variation: Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
18.9. Governing law: The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.10. Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.