1. DEFINITIONS AND INTERPRETATION
2. ORDER PROCEDURE
2.1 The Customer shall place an Order for the purchase of Goods and/or Services, by completing and signing an Order Form or any other form used by the Customer and submit that Order Form to Nexus Fusion for approval (by telephone, fax or email. 2.2 Nexus Fusion shall be entitled to accept or reject an Order in its discretion by notifying the Customer and wherever it is reasonably practicable to do so, shall notify the Customer as to whether an Order has been accepted no later than 5 Working Days following receipt of an Order. 2.3 Orders accepted by Nexus Fusion shall be binding on the Customer and may only be cancelled in accordance with the Agreement. 2.4 All Orders placed by the Customer are subject to the availability of Goods and/or Nexus Fusion’s capability to perform the Services. 2.5 Requests by a Customer for cancellation of any Order or for rescheduling of deliveries will only be considered by Nexus Fusion if made in writing, and shall be subject to written acceptance by Nexus Fusion. Where Nexus Fusion agrees to cancel, or reschedule an Order at the request of the Customer, the Customer agrees to indemnify Nexus Fusion 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 such cancellation or rescheduling.
These Terms and Conditions shall apply to any Order which shall be for such period within which the Goods and/or Services are delivered or performed. If Nexus Fusion enters into an ongoing agreement for the delivery of Goods and/or Services such shall specify the duration of the agreement or shall otherwise be for an indefinite period.
4.1 Any catalogues, price lists or other advertising literature or material as used by Nexus Fusion are intended only as an indication to the price and range of Goods and Services available. No prices, descriptions or other contained in such materials shall be binding on Nexus Fusion. 4.2 All quoted or listed prices for Goods are based on the cost to Nexus Fusion of supplying the Goods to the Customer and.
If, following acceptance by Nexus Fusion of the Order, and prior to the delivery of Goods at the Customer’s site, the cost of such Goods to Nexus Fusion shall increase, Nexus Fusion shall be entitled to give written notice to the Customer of the increased price of such Goods, and the Customer shall have the right to cancel its Order for such Goods by giving written notice to Nexus Fusion within 5 Working Days. If the Customer does not cancel its Order within such period, the original Order shall continue to be binding on the Customer varied as to the price of the applicable Goods only. 4.3 All Charges are exclusive of any taxes, including any excise, sales, use, value added (VAT), withholding and similar taxes and duties. The Customer shall be liable for and shall pay all such applicable taxes at the prevailing rate. 4.4 Unless otherwise agreed, prices do not include delivery charges to the Customer’ site or premises, and Nexus Fusion reserves the right to levy an additional charge for delivering the Goods to any specific destination advised by the Customer.
6. DEFECTS AND USE
6.1 Save as expressly provided, and save to the extent that the exclusion or restriction of liability may be prohibited by statute, Nexus Fusion shall not be liable for any loss arising out of the use of any of the Goods or the provision of Services. The Customer shall indemnify Nexus Fusion against all claims made against Nexus Fusion by any third party relating to the use of any of the Goods or Services by the Customer. 6.2 Unless otherwise specified in an Order Form, the Customer shall be responsible for arranging for all testing and inspection of the Goods upon delivery. Nexus Fusion shall have no liability for any claim in respect of any defect in the Goods which would be apparent on such inspection. 6.3 A claim by the Customer which is based on any defect the quality or condition of the Goods or their failure to correspond with specification shall (whether delivery is refused Standard Terms and Conditions of Business by the Customer) be notified to Nexus Fusion within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify Nexus Fusion accordingly, the Customer shall not be entitled to reject the Goods and Nexus Fusion shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Agreement. Where Goods are rejected, Nexus Fusion will not be bound to accept any claim for compensation, indemnity, or refund until liability, if any, has been established or agreed with the manufacturer or supplier and under no circumstances shall the invoiced costs of Goods be deducted or set off by the Customer until Nexus Fusion has been passed a corresponding credit note by the manufacturer or supplier.
7. MANUFACTURER’S SPECIFICATION
7.1 Nexus Fusion will not be liable in respect of any loss or damage caused by or resulting from any variation for whatever reason in the manufacturer’s specification or technical data. 7.2 Nexus Fusion will endeavour to advise the Customer of any manufacturer variation as soon as it receives notice there of from the manufacturer.
8.1 Nexus Fusion shall be entitled to invoice for Goods and Services as in the Order Form or immediately following delivery or performance (including where delivery is made in instalments). 8.2 The Customer shall pay all invoices for Goods and Services within 30 days of the date of Nexus Fusion’s invoice, unless otherwise specified in the Order Form. 8.3 In respect of all Customers, and not withstanding Clause 8.1 and 8.2 above, Nexus Fusion may suspend all deliveries of Goods and/or the performance of all Services and require different payment terms at Nexus Fusion’s discretion if the Customer shall exceed any credit terms notified by Nexus Fusion to the Customer from time to time.
9.1 Any dates quoted for delivery of the Goods are approximate only and Nexus Fusion shall not be liable for any delay in delivery of the Goods however caused. 9.2 Time for delivery shall not be of the essence of the Contract unless previously agreed by the Nexus Fusion in writing. The Goods may be delivered by the Nexus Fusion in advance of the quoted delivery date on giving reasonable notice to the Customer. 9.3 Quotations or offers of Goods ex-stock are subject to Goods being unsold at the time of receipt of the Customer’s written order.
10. PERFORMANCE OF SERVICES
10.1 Nexus Fusion shall endeavour to perform the Services in accordance with the timing and schedule agreed upon between the parties. Time for the completion of the Services shall not be “of the essence” unless previously agreed by Nexus Fusion in writing and Nexus Fusion shall not be liable for any delay in performing the Services however caused.
11. NON-STANDARD GOODS
11.1 Unless otherwise agreed, all Goods are supplied in accordance with the manufacturer’s or supplier’s standard specifications. 11.2 Subject to Clause 4.2 Nexus Fusion reserves the right to increase its quoted or listed price or to charge accordingly in respect of any Order accepted for products of non-standard specifications. Without prejudice to the Customer’s right to reject the Goods in accordance with Clause 6.3, Nexus Fusion will not consider cancellation of an Order for products of non-standard specifications once Order has been accepted in accordance with this Agreement or the return of those Goods following delivery.
12. SOFTWARE AND DOCUMENTATION
12.1 Where Software is provided as part of Goods and/ or Services, such Software is supplied under licence of the applicable third party owner or licensor. All proprietary rights in such Software, including title or ownership to the Software, shall remain with the relevant third party owner or licensor of such Software and shall not transfer to the Customer under any circumstances. 12.2 It is the sole responsibility of the Customer to comply with any terms and conditions of any Licence attaching to Software supplied under an Order and 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’s failure to comply with such terms and conditions shall constitute a material breach of the Order. 12.3 All Software provided by Nexus Fusion under the Agreement is supplied “as is”. If such Software fails to conform to its product description or proves defective in any other material way, the sole obligation of Nexus Fusion about the supply of such Software is to obtain and supply a corrected version from the manufacturer concerned provided always that the Customer has notified Nexus Fusion in writing of such defect or non-conformance to product description within 14 days of the date of delivery of the applicable Software. 12.4 Notwithstanding the provisions of any Licence: 12.4.1 unless otherwise agreed by Nexus Fusion, the Customer may only use Software for the purpose (if any) specified in the Order Form; 12.4.2 the Customer may not copy, modify or disassemble Software except to the extent as permitted by applicable law and on prior written notice to Nexus Fusion; 12.4.3 the Customer shall not remove, alter, cover or obliterate any copyright or other proprietary rights notice used on or about Software without the prior written consent of Nexus Fusion; 12.4.4 the Customer shall not permit any third party use of the Software in any way; and 12.4.5 the Customer shall indemnify and keep Nexus Fusion fully and effectively indemnified on demand against any liability, damage, expense, claim or cost (including reasonable legal costs and expenses) determined under any final judgement or settlement because of any breach by the Customer of this Clause 12 and any of the terms or conditions of the Licence.12.5 Any Documentation supplied by Nexus Fusion is supplied “as is” and as provided to Nexus Fusion by the relevant manufacturer or supplier of Goods or the third-party owner or licensor of the Software. Nexus Fusion makes no representations regarding the Documentation being satisfactory or fi t for purpose or otherwise and accepts no liability for defects or errors or otherwise about in the Customer’s use of the Documentation. Standard Terms and Conditions of Business
13.1 Each party warrants to the other that it has the full right, power and authority to enter and perform this Agreement and has not entered any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement. 13.2 Except as expressly provided in these Terms and Conditions, Nexus Fusion expressly disclaims any further representations, warranties, conditions or other terms, express or implied, by statute, collaterally or otherwise, including but not limited to implied warranties, conditions or other terms of satisfactory quality, fitness for a purpose or reasonable care and skill.
14.1 Subject to Clause 14.3 below, Nexus Fusion shall not be liable to the Customer in contract, tort (including negligence), statutory duty, pre- contract or other representations (other than fraudulent misrepresentations) or otherwise arising out of or in connection with this Agreement for: (a) consequential, indirect or special loss or damage; or (b) any loss of goodwill or reputation; or (c) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings), in each case whether advised of the possibility of such loss or damage and howsoever incurred. 14.2 Subject to Clause 14.3 below, Nexus Fusion’s maximum liability to the Customer in contract, tort (including negligence), statutory duty, pre- contract or other representations (other than fraudulent misrepresentations) or otherwise arising out of an Agreement shall: 14.2.1 in respect of all loss or damage suffered by the Customer which is attributable to a specific Order, be limited to an amount equivalent to the Charges paid to Nexus Fusion by Customer under the applicable Order Form; and 14.2.2 in respect of any other loss or damage suffered by the Customer, be limited, to an amount equivalent to the total Charges paid to Nexus Fusion by Customer for any Orders placed over the previous 6 months. 14.3 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees acting during their duties. 14.4 Notwithstanding Clauses 14.1 and 14.2, but subject as provided in Clause 14.3, Nexus Fusion shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer, nor shall Nexus Fusion be under any liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Nexus Fusion’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Nexus Fusion’s approval.
15.1 Each party shall have the right to terminate the Agreement on written notice if the other party: 15.1.1 commits any material breach of the terms of the Agreement which, in the case of a breach capable of remedy, is not remedied within 14 days of service of a notice specifying the breach and stating the intention to terminate the Agreement if not remedied; or 15.1.2 is involved in any act connected with insolvency of the business or ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or suffers any analogous event. 15.2 Nexus Fusion may terminate this Agreement immediately upon written notice if there is any change of control of the Customer, or any change the Customer’s business. 15.3 On termination of this Agreement under this Clause 15, Nexus Fusion shall have the right (without prejudice to any further or other claims or right which Nexus Fusion might have) to cancel any uncompleted Order or to cancel or suspend delivery, and payments for any delivery already made shall immediately become due and payable notwithstanding any other provisions of this Agreement. 15.4 On termination of this Agreement, howsoever occurring, any Charges or other sums paid in advance, shall not be refundable in whole or in part. 15.5 Termination of this Agreement shall be without prejudice to any rights, liabilities or remedies of a party accrued before termination nor shall it affect any provision of the Agreement which is expressly intended to come into or continue in force after termination or expiry.
16. CONFIDENTIALITY AND DATA
17. FORCE MAJEURE
17.1 Nexus Fusion shall not be liable for the cancellation by it of any order or any unfulfilled part thereof or for effecting partial delivery or performance if performance by Nexus Fusion is prevented or delayed whether directly or indirectly by any cause whatsoever beyond the reasonable control of Nexus Fusion whether such cause existed or was foreseeable at the date of acceptance of the Customer’s Order by Nexus Fusion or not and without prejudice to the generality of the foregoing any cause shall be deemed to prevent, hinder or delay Nexus Fusion if Nexus Fusion is thereby prevented hindered or delayed from fulfilling other commitments whether to the customer or to third parties. Standard Terms and Conditions of Business
18.1 Any notice given under this Agreement will be in writing and shall be deemed served if hand delivered to the other party or sent by pre- paid post (with or without a facsimile transmission or confirmed email copy) to the address or transmission number of that party as set out in the Cover Page or such other address or number as may be notified under this Agreement by that party from time to time for this purpose. 18.2 Notices will be deemed to be effective on personal delivery, within 48 hours of posting (if the address is in the UK or within 96 hours otherwise), or upon confirmation of receipt of facsimile or email.
19. ASSIGNMENT AND SUB-CONTRACTING
19.1 Neither party shall be entitled to assign, transfer, charge or licence the whole or any part of its rights and/or obligations under the Agreement to any party without consent of the other party which, when asked of the Customer, shall not be unreasonably withheld or delayed. 19.2 Nexus Fusion may engage any person, fi rm or company as its sub- contractor to perform any of its obligations, but shall not be released from any liability therefor.
20.1 Relationship Nothing in the Agreement shall be deemed to create a partnership or joint venture or contract of employment of any kind between the parties nor shall it be deemed to grant any authority not expressly set out in this Agreement or create any agency between the parties. 20.2 Entire Agreement Each party confirms that the Agreement sets out the entire agreement and understanding between the parties and that it supersedes all previous agreements, arrangements and understandings between them relating to the subject matter of the Agreement. Each party confirms that it has not relied upon any statement, representation or understanding that is not an express term of an Order and shall not have any remedy in respect of any statement, representation or understanding which is not an express term unless made fraudulently. 20.3 Waiver No failure or delay exercise by any party in exercising any right, power or remedy under the Agreement will operate as a waiver of that or any other right, power or remedy nor will any single or partial exercise by either party of any right, power or remedy preclude any further exercise of any other right, power or remedy. 20.4 Severance To the extent that any provision of the Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of the Agreement, it shall not affect the validity, lawfulness or enforceability of the remainder of the Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction. 20.5 Time of the Essence Time shall not be of the essence except where it is expressly stated to apply. 20.6 Rights of Third Parties Nothing in the Agreement shall create or confer any rights or other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person other than the parties to this Agreement, save that the parties agree that the Customer is a party to the Licence with the Licensor. 20.7 Further Assurance Each party shall at the cost and expense of the other party use all reasonable endeavours to do all such further acts and things and execute or procure the execution of all such other documents as that party may from time to time reasonably require for giving that party the full benefit of the assets, rights and benefits to be transferred to the other party under this agreement. 20.8 Governing Law The Agreement shall be construed in accordance with the laws of England and each party hereby irrevocably submits to the non-exclusive jurisdiction of the courts of England. 20.9 Miscellaneous The rights and remedies of the parties under the Agreement are cumulative and in addition to any rights and remedies provided by law. Any variation to the Agreement must be in writing and agreed by the parties. 20.10 Dispute Resolution If any dispute arises between the parties out of the Agreement, the parties shall attempt to settle it by referring it to a Board member of each party. If the dispute is not resolved by such board members within 1 month of such referral, then it shall be resolved by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure for a period not exceeding 3 months.
21. EXPORT TERMS
21.1 Unless the context otherwise requires, any term or expression which is defined in or given a meaning by the provisions of Incoterms shall have the same meaning in the Agreement, but if there is any conflict between the provisions of Incoterms and this Agreement, the latter shall prevail. 21.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause 21 shall (subject to any special terms agreed in writing between the Customer and Nexus Fusion) apply notwithstanding any other provision of the Agreement. 21.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. 21.4 Unless otherwise agreed in writing between the Customer and Nexus Fusion, the Goods shall be delivered fob the air or sea port of shipment and Nexus Fusion shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979. 21.5 The Customer shall be responsible for arranging for testing and inspection of the Goods at Nexus Fusion’s premises before shipment. Nexus Fusion shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit 21.6 Payment of all amounts due to Nexus Fusion shall be made by irrevocable letter of credit opened by the Customer in favour of Nexus Fusion and confirmed by a bank acceptable to Nexus Fusion or, if Nexus Fusion has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to Nexus Fusion of a bill of exchange drawn on the Customer payable 60 days after sight to the order of Nexus Fusion at a branch of such bank in England as may be specified in the bill of exchange. 21.7 The Customer shall not offer the Goods for resale in any restricted country (as specified by the DTI or other UK government agency from time to time) or any country notified by Nexus Fusion to the Customer at or before the time the Customer’s order is placed, or sell the Goods to any person if the Customer knows or has reason to believe that that person intends to resell the Goods in any such country. Standard Terms and Conditions of Business
22. NON-BUSINESS TRANSACTIONS
22.1 Clauses in this Section 22 shall only apply to the transactions between Nexus Fusion and the Customers who fall into the category of the consumers as defined in The Consumer Protection (Distant Selling) Regulations 2000, the Unfair Contract Terms Act 1977, or the Unfair Terms in Consumer Contracts Regulation 1999 (“Consumer Customer”). 22.2 Non-Business Customers may cancel the Order for any reason by sending a written notice of intention to cancel to Nexus Fusion within 7 working days from the receipt of the Goods by the Non-Business Customer. Non-Business Customers shall be responsible for the cost of returning the Goods. 22.3 Notwithstanding Clause 22.2 above, Non-Business Customers shall not be able to cancel the contract: 22.3.1 for the supply of Services once the performance of the Services has begun under the Non-Business Customer’s instruction; 22.3.2 for the supply of Goods made to the Non-Business Customer’s specifications or clearly personalised or which because of their nature cannot be returned; 22.3.3 for the supply of audio or video recordings or computer software if they are unsealed by the Non-Business Customer; or 22.3.4 for the supply of newspapers, periodicals or magazines. 22.4 In case the Goods ordered by the Non-Business Customer are no longer available and Nexus Fusion offers substitute Goods, the cost of returning substitute Goods shall be borne by Nexus Fusion. 22.5 Notwithstanding Clauses 13.2, 22.2 and 22.3 above, if the Goods or Services sold are not as described, of satisfactory quality, the Non- Business Customer may request a repair, replacement or refund within fourteen (14) days from the date of receipt by contacting Nexus Fusion with the proof of purchase. The Non-Business Customer may request refund only if the Goods are unopened and in perfect condition accompanied by receipt. 22.6 Nothing in this Agreement shall affect the Non-Business Customer’s statutory rights.