Reference in these Terms and Conditions to ‘the company’ means Nutel Solutions Ltd or any of its subsidiaries or associated companies dealing on these terms and conditions; ‘the Customer’ means any party to whom the company sells goods; ‘ the Carrier’ means any party to whom the Company consigns goods for carriage or storage; ‘the Pro Forma Invoice’ means the written pro forma invoice sent by the company to the Customer making of confirming an offer by the Company to supply goods to the Customer; ‘the Sold Goods’ means the goods described in the Pro Forma Invoice; ‘the Consigned Goods’ means the goods consigned to the Carrier for the carriage or storage; ‘the Sale Contract’ means the contract between the Company and the Customer for the sale of Sold Goods; and ‘the Carriage Contract’ means the contract between the Company and the carrier for the carriage or storage of the Consigned Goods.
These Terms and Conditions shall override any other terms and conditions stipulated or referred to by the Customer of the Carrier, and any course of dealing established between parties, the signing or receipt by the company of any other terms and conditions or other documents shall not imply any modification of these Terms and Conditions.
No variation of these Terms and Conditions shall be effective unless made in writing signed by or on behalf of the Company.
The Company may set off against any sums whatsoever due by it (whether under the Sale Contract of the Carriage Contract or otherwise) to the Customer or the Supplier or the Carrier as the case may be, any sums whatsoever due to the Company (whether under the Sale Contract or the Purchase Contract or the Carriage Contract or otherwise) by the Customer or the Supplier or the Carrier as the case may be.
Law and Jurisdiction:
These terms and Conditions and the Sale Contract shall be governed by and construed in accordance with English law, any dispute arising under or in connection with these Terms and Conditions and/or the Carriage Contract shall be referred to the non-exclusive jurisdiction of the English Courts.
Exclusion of Liability:
6.1 Except as expressly otherwise provided in these Terms and Conditions; the Company shall be under no liability as regards the Sold Goods:- 6..1.1 In respect of the quality, condition or description of the Sold Goods or their fitness for any particular purpose; or 6.1.2 for any loss or damage (whether direct or consequential) however caused to the Customer or any other person; or 6.1.3 for death or personal injury (caused otherwise than by the negligence of the Company) to the employees or agents of the Customer or to any other person. 6.2 Any term, condition, representation or warranty contrary to this Clause 6, whether express or implied by statute, common law or otherwise is hereby excluded. 6.3 Clauses 6.1 and 6.2 above shall apply save that id any act of parliament or above statutory provision for the time being in force shall avoid or make unenforceable any of their provisions, they shall be deemed to apply with the exclusion of the provisions thus made void or unenforceable. 6.4 Where the Customer is or deals as a consumer, nothing in this clause or elsewhere in these Terms and Conditions shall affect his or her statutory rights.
Formation of Sale Contract:
A contract for the supply of the Solk Goods shall exist between the Company and the Customer upon the Company receiving back from the Customer the Pro Forma Invoice signed by or on behalf of the Customer. If the Company does not receive back the Pro Forma Invoice signed by the Customer within 24 hours of its despatch by the Company to the customer, the Company may treat its offer to supply goods in accordance with the Pro Forma Invoice as withdrawn and unavailable by the Customer, and shall be under no liability to the Customer.
Representation by the Company:
In entering into a contract with the Company, the Customer acknowledges that the contract has not been induced by , and the Customer does not rely on, any recommendation, warranty, promise, assurance or advice made by or on behalf of the Company unless the same has been confirmed in writing by the Company.
Delivery by Instalments:
Where the Company agrees to deliver the sold Goods by instalment will constitute a separate contact to which these Terms and Conditions will apply.
Sales on Delivered Terms:
Where under the sale Contract the Company agrees to delivery the Sold Goods to the Customer’s premises or other address nominated by the Customer: 10.1 The Company will arrange for the Sold Goods to be carried to the delivery address stated in the Pro Forma Invoice by such means of transport as the Company shall elect. The price of the Sold Goods will include the normal cost of such carriage, save that the Company may levy a delivery charge in accordance with its standard tariff or as otherwise agreed with the Customer, and an additional charge where the Customer requests urgent delivery.. Any extraordinary costs of carriage caused by circumstances beyond the control of the Company will be reimbursed by the Customer to the Company. 10.2 Delivery will be effected and risk in the Sold Goods will pass to the Customer as the Sold Goods are unloaded from the means of transport arranged by the company at the delivery address stated in the Pro Forma Invoice. 10.3 Sold Goods delivered in a damaged condition must be signed for as such by the Customer upon receipt from the Carrier.
Sales on Ex-Warehouse Term:
Here under the Sale Contract the Company agrees to make available the Sold Goods for collection by the Customer: 11.1 The Company will make the Sold Goods available for collection at the collection address state in the Pro Forma Invoice and the Customer will arrange for the goods to be collected promptly at its own expense. 11.2 Delivery will be effected and risk in the Sold Goods will pass to the Customer as the Sold Goods are loaded onto the means of transport by which the Customer has arranged to collect the Sold Goods.
Sales on FOB Terms:
Where under the Sale Contract the Company agrees to deliver the sold Goods free on board a means of transport arranged by the Customer: 12.1 The Customer will promptly arrange for such means of transport to be made available at its own expense and will give the Company full instructions for the delivery of the Sold Goods onto the means of transport arranged. 12.2 The Company will deliver the Sold Goods onto the means of transport arranged by the Customer. Delivery will be effected and the risk in the Sold Goods will pass to the Customer as the Sold Goods are loaded onto the means of transport arranged.
Co-operation of the Customer:
Should the customer fail to give full instructions or fail to take delivery or to arrange a means of transport or fail to collect the sold Goods in accordance with clauses 10-12 or fail to provide as and when necessary such as documentation, information or other assistance as the Company may require in order to enable it to effect delivery of the Sold Goods, the Company may at its option (and without prejudice to any of its other rights) store the Sold Goods at the expense of the Customer pending collection by the Customer, or terminate the Sales Contract and dispose of the sold Goods as it seems fit, with the Company being under no liability to the Customer and the Customer being liable for all losses and expenses caused to the Company.
Time for Delivery of the Sold Goods:
Any date or time quoted by the company for delivery of the sold Goods is an estimate only, and time for delivery shall not be of the essence of the Sale Contract. The Company will be under no liability to the Customer for failure to meet such estimate, and the Customer will not be entitled to refuse to accept the Sold Goods by reason of such failure, unless the failure has been caused by the fault or negligence of the Company and the goods are delivered to the Customer more than 21 days after the date or time quotes.
Inspection by the Customer:
The Customer will inspect the sold goods as soon as practicable after delivery, and any Sold Goods delivered damaged will be retained by the Customer for inspection by the company.
Notice of Damage, Shortage or Non-Delivery:
The Customer will advise the company in writing of any non-delivery of part or all the sold goods as delivered, within 2 days of delivery (or of the date on which the Sold Goods should have been delivered), and clause 19 will apply. If no such notice is given, or if the Sold Goods delivered are not retained for inspection by the Company or (where the company has arranged carriage) are not signed for as damaged by the Customer on receipt from the carrier, the Sold Goods will be conclusively presumed to have been delivered without damage or shortage, and any claim which the Customer might otherwise have had against the Company shall be deemed to have waived.
Defective or Non-Conforming Goods:
If following delivery and inspection the Customer believes that the sold goods are not in accordance with the Sale Contract or are defective in materials or workmanship (subject to Clause 16) the Customer will give notice to that effect to the Company within 14 days of delivery and retain the defective or non-conforming Sold Goods for inspection by the company and Clause 19 will apply. If the Customer does not give such notice, the Sold Goods will be conclusively presumed to be in all respects with the Sale Contract and free fro any defect which would be apparent on reasonable examination, and the Customer will be deemed to have accepted the sold Goods accordingly. Save in the circumstances referred to in Clause 18. Sold Goods accepted by the Customer cannot subsequently be returned and any claim which the Customer might otherwise have had shall be deemed to have been waived.
If any defect in the materials from which the sold Goods are made or fault in manufacture of the Sold Goods is found to exist and is reported to the company in writing within 12 months of delivery (or within such shorter warranty period as may be state in the Pro Forma Invoice), the defective Sold Goods will be retained by the Customer (or the Customer will arrange access to the defective Sold Goods in the hands of a third party) for inspection, and Clause 19 will apply. This guarantee will cease to have effect if the Sold Goods have been used improperly or for any other purpose than those for which they were intended or otherwise than in accordance with the company’s instructions (if any), or have been store in improper conditions.
Where following inspection the Company is reasonably satisfied that: 19.1 the sold Goods notified by the Customer pursuant to Clause 17 are defective or not in accordance with the Sale Contract; or 19.2 the Sold Goods notified by the Customer pursuant to Clause 18 are subject to defect in materials or manufacture; The Company will at its sole option repair the damaged Sold Goods: or replace the damaged or missing Sold Goods (or parts) free of charge; or refund the purchase price, against return of the damaged Sold Goods (or parts) in the condition and packing in which they were delivered to the Customer, and the customer’s sole remedy against the Company shall be limited to such repair, replacement or refund.
Alteration of Price:
The Company reserves the right to alter the price of the Sold Goods after quotation and before despatch of the Pro Forma Invoice. The Customer will be bound to pay the altered price if it signs and returns to the Company the Pro Forma Invoice containing the altered price.
Payment for the Sold Goods:
Unless otherwise agreed in writing by the Company, payment for the Sold Goods is due in full immediately upon despatch of the company’s invoice. Payment will not be deemed to have been made until any cheques, drafts or bill by which payment is to be effected have been cleared or honoured.
Method of Payment:
The Company reserves the right to require payment for the Sold Goods by way of a letter of credit in a form acceptable to the Company, or by such other means as it may seem fit. Where the Company agrees to accept payment by credit card, the Company may make an additional charge, and the Customer irrevocably authorises the Company to deduct all sums due to it, whether under the Sales Contract or otherwise, from the credit card account notified to the Company.
Deposits and Cash on Delivery:
The Company may require payment of a deposit or the full invoice price of the Sold goods by the customer before delivery of the sold Goods, in which case the company shall be under no obligation to deliver the Sold Goods until such payment shave been made. If where required such payment is not made before the company is ready to delivery the Sold Goods, the Company may at its option (without prejudice to any of its other rights) store the Sold Goods at the expense of the Customer pending payment and collection by the customer, or terminate the Sale Contract and dispose of the sold goods as it sees fit (and retain part or all of any deposits paid by the Customer to meet its losses and expenses arising including interest due), with the Company being under no liability to the Customer and the Customer being liable for all losses and expense caused to the Company.
The Company may charge interest on any payment outstanding after the invoice date at 4% per annum above the Barclays Bank Plc base lending rate for the time being in force or 10% per annum, whichever is the higher, calculated on the outstanding balance due from the invoice date until receipt by the Company in full of the outstanding amount and interest due.
The Company may in its absolute discretion at any time permit the cancellation of the Sale Contract by the customer provided that the price of the Sold Goods already delivered to the Customer will be paid to the company immediately in full upon such cancellation (if not already paid), together with 20% of the price of the Sold Goods remaining to be delivered under the Sale Contract.
Retention of Title:
The Sold Goods shall remain the sold and absolute property of the company until the Customer has paid the full invoice price of the Sold Goods and all other sums due to the Company, whether under the Sale Contract or not. The Customer acknowledges that it shall be in possession of the Sold Goods as bailee an in a fiduciary capacity for the Company and will store the sold Goods separately, in a readily identifiable manner and without charge to the Company, until such payment has been made. If payment of the invoice price of the sold Goods or any other sum due to the company from the Customer is overdue, the company may retake possession of an/or resell the Sold Goods, and the Customer will allow the Company’s employees or agents to enter the premises where the Sold Goods are stored, during normal working hours and with such vehicles and equipment as the Company may consider necessary, in order to do so.
Resale by Customer:
Where the Customer resells the Sold Goods before title in the sold Goods has passed to it, the Customer shall sell as agent for the Company (but as principal with respect to the third party buyer). The Customer will keep a full record of such sales, and will pay the proceeds of sale (less the customer’s profit if any) into a separate non-overdrawn bank account, where they will be hold on trust for the Company by the Customer.
Risk and Action for Price:
Notwithstanding the provisions of Clauses 26 & 27, risk in the sold Goods will always pass to the Customer on delivery, and the company will always be entitled to maintain an action for the invoice price of the sold Goods as soon as payment falls due.
Insolvency of Customer:
Notwithstanding the terms of any other agreement as to the terms of payment, the full invoice price of the Sold Goods shall immediately become due and payable, and the company may immediately terminate the Sale Contract (without prejudice to any of its other rights) if the Customer commits any act of bankruptcy or insolvency, or if a petition of bankruptcy is presented by the Customer, of if the Customer enters into negotiations for an arrangement or composition with its creditors, or if a petition is presented for an administration order against the Customer, or if a petition is presented or a resolution is proposed to wind up the Customer, or if a receiver or an administrative receiver is appointed over any of the Customer’s assets, or if any distress or execution is levied against the Customer. Upon such termination the company shall have the right of repossession and resale of the sold Goods set in Clause 26.
If the company is prevented, hindered or delayed (directly or indirectly) from delivering the Sold Goods or any part of them or from otherwise performing the Sale Contract or any part of it by reason of act of god, war, embargo, riot, strike, lockout, trade dispute, fire, flood, breakdown, government action, interruption of transport, delay in or cessation of delivery to the company of any goods or materials, or any cause whatsoever outside the company’s control (not restricted to causes of like nature to those specified in this Clause), the Company will be entitled to cancel the Sale Contract, or extend the time for performance of the Sale Contract by a period at least equal to the period during which performance has been prevented, hindered or delayed, without liability to the Customer.
Goods Consigned with “Hold” instructions:
Where the Company issues instructions to the Carrier that the Consigned Goods are not to be released to the Customer or any third party without written authorisation of the Company: 31.1 The Carrier will not under any circumstances release the Consigned Goods to the customer or any other party unless the Carrier has received express authority to do so in writing signed by or on behalf of the Company: and 31.2 If the Carrier releases the Consigned Goods to the customer or any other party without having received authorisation to do so in writing by or on behalf of the Company, the Carrier will be fully liable for all losses and expenses caused to the Company (including, but not limited to, the full invoice price of the Equipment released), and any terms of the Carriage Contract by which the Carrier might otherwise be entitled to avoid liability for such losses and expenses shall be of no effect.
Information provided by Customers:
Information and data provided by Customers may be used to improve our services and products. We may contact Customers from time to time about products which we believe may be of interest to them. The Company may disclose information or data provided by Customers to its financiers, and the Company or its financiers may from time to time make searches of your records at credit reference agencies. Customers’ data may in some circumstances be transferred outside the European Union. You may notify us in writing if you do not wish us to use information we hold about you for marketing or other purposes by contacting us at Customer Services, NuTel Solutions, Units 1 & 2 The Maltings, Maltings Road, Battlesbridge, Essex, SS11 7RH
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