Excel Packaging Machinery Limited – Terms and Conditions of Business
1. Definitions and Interpretation
1.1 In these Terms and Conditions of Business (save where the context otherwise requires) the following expressions shall have the following meanings:-
1.1.1 “Excel” means Excel Packaging Machinery Limited (Company Registration No. 04772571) whose registered office is at Unit C5, Regent Part, Summerleys Road, Princes Risborough HP27 9LE.
1.1.2 “Bespoke Products” means those products of a specialist, unique and individual nature required by the Customer or any other products which are not detailed in Excel’s current product and/or price list as amended from time to time and which Excel agrees to provide to the Customer
1.1.3 “Confidential Information” means information concerning or relating to know-how, trade secrets, technical processes, customer, client and supplier lists, price lists, reports, memoranda, details of contractual arrangements and any other matters concerning the business affairs or finances of Excel or the Customer (as the case may be) or clients and customers of or other persons having dealings with either of them
1.1.4 “Customer” means the person(s) purchasing the Products and/or Services from Excel
1.1.5 “Products” means those products detailed in Excel’s current product and/or price list as amended from time to time
1.1.6 “Property” means the property of the Customer as specified in the Quotation or as notified in writing by the Customer to Excel
1.1.7 “Services” means those services which the Customer instructs Excel to supply in relation to the Products and/or Bespoke Products
1.1.8 “Terms” means these Terms and Conditions of Business governing the sale and provision by Excel and the purchase by the Customer of the Products and/or Bespoke Products and/or the Services
1.1.9 “Quotation” means the estimated costs of the Products and/or Bespoke Products and/or Services to be supplied by Excel to the Customer in accordance with these Terms
1.2 In the event a party comprises more than one person all obligations and agreements shall be deemed joint and several obligations and agreements of that party.
1.3 The masculine includes the feminine and the singular the plural.
1.4 Words importing persons shall be construed as importing a corporate body or a partnership and vice versa.
1.5 The headings and any marginal notes do not affect the construction or interpretation of these Terms.
1.6 Words denoting an obligation on a party to do any act matter or thing shall include an obligation to procure that it be done and words placing a party under a restriction shall include an obligation not to permit or allow infringement of such restriction.
1.7 These Terms supersede any prior agreement (oral or in writing) between the parties and the parties acknowledge that these Terms contain the whole agreement between them and that the Customer has not relied upon any oral or written representations made by Excel or its employees or agents.
1.8 These Terms shall be governed by English Law and the parties shall submit any dispute arising hereunder to the exclusive jurisdiction of the English Courts.
2. Request for Products and Services
2.1 The Customer will:
2.1.1 select the Products that the Customer requires from Excel and will provide in writing to Excel all necessary information in relation to those Products as may be required (in respect of which the Customer shall ensure such information is complete and accurate) and
2.1.2 will provide Excel with full and accurate details of the Services (if any) required by the Customer following which Excel will provide the Customer with a Quotation based solely on the said information supplied by the Customer.
2.2 In the case of Bespoke Products, the Customer must provide to Excel in writing as much information as possible with regard to the specifications of the Bespoke Products required (together with any other information that Excel may require) following receipt of which Excel will provide the Customer with a Quotation based solely on the said information supplied by the Customer.
2.3 If the Customer wishes to accept the Quotation the Customer must place an order for the Products and/or Bespoke Products and/or Services with Excel. The order must be in writing (unless Excel agrees otherwise at its absolute discretion) with reference to the Quotation provided by Excel and will be deemed by Excel to confirm that all details and information supplied and contained within the Quotation are complete and accurate.
2.4 Unless otherwise stated, any Quotation issued by Excel is valid for acceptance for 30 days from the date thereof Provided that Excel has the right to withdraw the Quotation at any time.
2.5 In placing an order for the Products and/or Bespoke Products and/or Services the Customer confirms to Excel that the Customer accepts and understands these Terms and agrees to be bound by them. The Customer’s order is subject to confirmation and acceptance by Excel and a contract will only come into being upon such acceptance and confirmation in accordance with these Terms.
2.6 If any Quotation contains provisional sums Excel shall use its reasonable endeavours to ascertain an accurate cost and agree it with the Customer before incurring expenditure on the Customer’s behalf. However, if this is not possible the Customer shall pay the actual cost of the item in which case the total price set out in the Quotation shall be adjusted accordingly.
2.7 Excel will make reasonable efforts to give an accurate material and labour cost estimates in any Quotation. However, the Customer hereby agrees and acknowledges that the said estimate may be subject to change as a result of increases in costs of materials and/or labour following the date of the Quotation or as a result of circumstances that arise during the provision of the Products and/or Bespoke Products and/or Services in accordance with these Terms which have not been anticipated and/or which are unforeseen and/or which involve the need to carry out work which is not part of the Customer’s order. Excel shall use its reasonable endeavours to ascertain an accurate cost and agree it with the Customer before obtaining the materials and/or engaging the labour and/or carrying out such additional or unforeseen work or work not part of the Customer’s order. However, if this is not possible the Customer shall pay the actual cost of the said material and/or labour and/or work in which case the total price set out in the Quotation shall be adjusted accordingly.
2.8 The Customer further agrees and acknowledges that packaging, transportation, travel, lodging, subsistence and parking costs and expenses may not be contained in the Quotation but all such expenses will be added to the final invoice or billed under a separate invoice that will be sent to and be payable by the Customer.
2.9 In the event that the Customer wishes to amend, postpone or cancel the Customer’s order for Products and/or any Services (save in respect of Services relating to Bespoke Products) such amendment, postponement or cancellation will only be valid if it is acknowledged, confirmed and accepted by Excel in writing. The Customer will be liable to pay for the Products and/or Services provided up to the date of amendment, postponement or cancellation (including but not limited to the work carried out and any goods, materials or services supplied or ordered on the Customer’s behalf, loss of profit and all amendment, postponement or cancellation or termination fees payable by Excel to any third party). The amount of such fees shall be at the sole discretion of Excel. If the Products ordered by the Customer have already been despatched by Excel to the Customer, the Customer must (at the Customer’s own cost) return the Products to Excel immediately. If Excel accepts any amendment or postponement it shall also have the right to amend the Quotation and terms of payment in respect of the amendment or postponement.
2.10 In the case of Bespoke Products and Services relating to them, unless agreed by Excel in writing, Excel will not process and/or commence work relating to the Customer’s order until a deposit or full payment is received from the Customer. Thereafter the Customer will not be entitled to cancel or change the order and will be liable for payment in full.
2.11 If Excel agrees with the Customer to process and/or commence work relating to the Customer’s order for Bespoke Products and Services relating to them prior to the payment of a deposit or full payment, the Customer agrees and acknowledges that it will not be entitled to cancel or change the order and will be liable for payment in full.
3. Time Not of the Essence
Excel shall use its reasonable endeavours to meet any dates and times specified for performance of its obligations contained in these Terms. However, all such dates and times are approximate only and Excel shall not be deemed to be in breach of these Terms and shall not be liable in any manner for any delay, for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the performance of its obligations, and subject to Clauses 6.8 and 8.3, time shall not be of the essence of these Terms.
4. Customer’s Obligations
4.1 The Customer shall (where applicable) permit Excel, its employees, sub-contractors, agents and other appointed representatives access to the Property at all reasonable times for the purposes of providing the Products and/or Bespoke Products and/or Services and for all purposes connected therewith.
4.2 The Customer will be responsible for any loss or damage to any goods, materials, tools or equipment delivered to or stored at the Property except to the extent that such damage arises from the failure of Excel to take reasonable care.
4.3 The Customer shall at its own cost ensure that all information, data, test products, samples, documentation, relevant passwords, authority codes and material (“Information”), all ventilation, light, air, water, telephone, power supplies, utilities and equipment and all personnel engaged by or associated with the Customer and required for the supply of the Products and/or Bespoke Products and/or performance of the Services by Excel in accordance with these Terms are provided to Excel in a timely manner and made available to Excel at all reasonable times, and in the case of Information that is complete and accurate.
4.4 The Customer shall ensure that any goods, products or other equipment supplied by it to Excel for the purpose of supplying the Products and/or Bespoke Products and/or carrying out the Services are of satisfactory quality and fit for their purpose.
4.5 The Customer shall at all times be solely responsible for the security, integrity and reliability of all programs, equipment, data and other information (confidential, sensitive or otherwise) at the Property before, during and after the supply of Products and/or Bespoke Products and the performance of the Services by Excel in accordance with these Terms
4.6 The Customer shall ensure at all times that all software, wi-fi and internet connections and other equipment, programs and material relating to the provision of the Products and/or Bespoke Products and/or Services by Excel is of a release version or level which is compatible with the current level of hardware, firmware and other software or with such other specifications as Excel shall require and is licensed for use by the Customer and that the software is available at the Property and not out of date or incompatible and is readily installable and in good operational condition and not damaged or corrupted.
4.7 The Customer shall comply at all times with any obligations imposed on it under the Data Protection Act 1998, or any other data protection obligations applicable to it, in relation to the provision of information and other material to Excel to facilitate the supply of Products and/or Bespoke Products and/or carrying out of the Services, and the Customer shall ensure that the provision of any such information or other material to Excel will not breach any confidentiality obligations that may be imposed upon it
4.8 The Customer will utilise the Products and/or Bespoke Products and all software and equipment in accordance with the manufacturers’ or suppliers’ operating manuals and instructions and promptly and regularly carry out all operations and other support routines (if any) as are set out or referred to therein
4.9 The Customer will afford to Excel, its staff, agents and sub-contractors, whilst on the Property, the same protection for health and safety as is due to the Customer’s employees and if Excel, its staff, agents and sub-contractors are required to enter the premises of a third party, the Customer will procure that the third party also affords such protection to Excel, its staff, agents and sub-contractors as is due to its employees.
4.10 In cases where Excel is to provide installation services to the Customer, the Customer acknowledges and agrees that such services shall (unless otherwise agreed in writing) only be deemed to comprise the supply of a trained engineer to supervise the installation of Products and/or Bespoke Products at the Property which in the usual course of event shall comprise assembly, coupling up, connection of services (including electrical but not beyond machine isolator), testing and trail runs and instruction of Customer staff. The Customer must arrange assistance from other trades as may be required and is to sign an acceptance certificate following completion of such installation services.
5. Excel’s Obligations
5.1 Excel shall provide all Services under these Terms using reasonable care and skill.
5.2 Excel shall provide the Customer (where relevant) with the operating instructions and such other applicable documentation relating to the Products and/or Bespoke Products. The Customer hereby agrees and acknowledges that such instructions and documentation will be supplied as written in the English language unless the Customer requests otherwise and, in such cases, Excel reserves the right to charge the Customer in respect of any costs incurred in the provision of those instructions and documentation in another language.
6. Delivery & Packaging
6.1 Unless otherwise stated, delivery shall be deemed to take place when the Products and/or Bespoke Products are collected by the Customer from Excel or when the Products and/or Bespoke Products are delivered to the address specified in the Customer’s order and from the moment that the Products and/or Bespoke Products begin to be unloaded from the delivery vehicle.
6.2 The costs of delivery shall be in addition to the price for the Products and/or Bespoke Products and/or Services and shall be subject to the method of delivery.
6.3 Excel shall provide the Customer where appropriate and possible a quotation (if not already incorporated in the Quotation) in respect of delivery costs which shall be paid by the Customer at such time as Excel shall require.
6.4 Excel will not be required to deliver an order in instalments or to more than one address. However, if the Customer requests Excel to deliver the Products and/or Bespoke Products in instalments or to a different address than that specified in the Customer’s order, Excel will be entitled to make an additional charge to the Customer calculated in accordance with the extra costs incurred by it in respect of such delivery plus an administration fee of 10% thereof and which, if possible, will be notified to the Customer by Excel prior to delivery.
6.5 If the premises or property to which the Products and/or Bespoke Products are delivered are, at the time of delivery, closed, there is no answer, or if delivery is not accepted, Excel will retain the Products and/or Bespoke Products until the Customer has made alternative arrangements to accept delivery acceptable to Excel and Excel will be entitled to make an additional charge (to include but not limited to costs of storage) to the Customer in respect of such.
6.6 If the Products and/or Bespoke Products Goods are to be collected by the Customer, if such Products and/or Bespoke Products have not been so collected within 2 calendar months of the date notified to the Customer that the Products and/or Bespoke Products are available for collection, Excel will be entitled to make an additional storage charge in respect of the period from such date until the Products and/or Bespoke Products are collected Provided that in the event the Products and/or Bespoke Products have not been collected within 3 months of the date notified to the Customer that the Products and/or Bespoke Products are available for collection Excel may elect by notice in writing to the Customer to cancel the Customer’s order and dispose of the Products and/or Bespoke Products as it may decide in its absolute discretion but the Customer shall remain liable for any outstanding balance due to Excel together with any additional storage or other charges incurred as a result of such non-collection.
6.7 If Excel supplies the incorrect Product and/or Bespoke Products to the Customer because they received the wrong details about their machine or part number required, the Customer shall remain liable for any charges incurred as a result or any outstanding balance. It remains at Excel’s absolute discretion how such occurrences will be dealt with.
6.8 Unless otherwise stated, all Products and/or Bespoke Products supplied by Excel are at the Customer’s risk from the moment of delivery under this Clause 6 and the Customer should insure the Products and/or Bespoke Products against loss or damage.
6.9 No claim for damaged Products and/or Bespoke Products, shortages or non-delivery will be accepted by Excel unless written notice of such damage or shortage is received by Excel within 7 days of receipt of the Products and/or Bespoke Products by the Customer, within 7 days of the defect being discovered where the defect could not reasonably have been discovered earlier, or in the case of non-delivery, 7 days from the date of delivery. Upon receipt of notice from the Customer pursuant to this Clause, Excel shall deal with the claim as it sees fit. For the purposes of this Clause only, all time periods referred to shall be of the essence. Failure to comply with those time periods will render any potential claim void.
6.10 For the avoidance of doubt, any delivery date or other date given by Excel to the Customer under these Terms is no more than an estimate and shall not be of the essence.
7. Price and Payment
7.1 The price for the Products will be as shown in Excel’s current price and/or product list as amended from time to time or as notified to the Customer by Excel and will be reflected in the Quotation provided to the Customer. In the case of Bespoke Products the price will be reflected in the Quotation.
7.2 The price in respect of the Services (to include estimated costs of labour in respect of the same) will be as notified to the Customer by Excel and, subject to Clause 2.6 and 2.7, will be reflected in the Quotation provided to the Customer.
7.3 All sums payable by the Customer pursuant to these Terms are (unless otherwise stated) exclusive of any Value Added Tax or any other applicable tax which the Customer will pay in addition on the due date for payment.
7.4 Unless otherwise agreed in writing, Excel will, on the acceptance by it of the Customer’s order, invoice the Customer for a proportion of the value of the Quotation as specified in the Quotation and the Customer shall pay the said invoice immediately. Excel will not process or commence work relating to the Customer’s order until such payment is received by it. When the Customer’s order has been completed but prior to delivery of any Products and/or Bespoke Products, Excel will invoice the Customer for the balance of sums payable by the Customer in accordance with these Terms and the Customer will pay the invoice in full on the date of such unless otherwise agreed in writing. Excel shall not be under any obligation to deliver any Products and/or Bespoke Products until all sums due to it have been paid in full by the Customer.
7.5 Unless otherwise agreed, payments can only be made in pounds sterling and may be made in cash, by bank draft, by BACS, by telegraphic transfer, or by CHAPS. The Customer undertakes that all details the Customer provides to Excel for the purpose of ordering and purchasing the Products and/or Bespoke Products and/or Services are correct and that there are sufficient funds to cover the cost of the Products and/or Bespoke Products and/or Services ordered.
7.6 The Customer confirms that it consents to the transfer of data held concerning the Customer by Excel to any purchaser or prospective purchaser of Excel only.
7.7 Should the Customer fail to pay any invoice, or any part thereof, submitted by Excel, Excel may, without prejudice to any other right or remedy available to it, charge the Customer interest (both before and after judgment) at the rate of 4% above the base rate of HSBC Holdings Plc from the due date until payment is made in full.
7.8 Ownership of the Products and/or Bespoke Products and/or any other goods supplied by Excel or its agents, whether installed or not, shall not pass to the Customer until all sums due to Excel under these Terms or any other contract with the Customer have been paid in full and until such time the Customer shall keep the Products and/or Bespoke Products and/or any other goods supplied in good repair and condition and properly protected and insured and designated in such a manner as clearly shows that the Products and/or Bespoke Products and/or any other goods supplied remain the property of Excel and shall not pledge or charge the Products and/or Bespoke Products and/or any other goods supplied by way of security for any indebtedness of the Customer, and Excel shall at any time be entitled to enter the Customer’s property, or onto any property at which Excel reasonably believes the Products and/or Bespoke Products and/or any other goods supplied to be, to remove any Products and/or Bespoke Products and/or any other goods supplied for which the Customer has not paid in full.
7.9 Excel shall be entitled to cease or suspend the supply of any Products and/or Bespoke Products and/or Services to the Customer until such time as all outstanding fees and interest are paid in full and shall be entitled to exercise a lien over any items, equipment or documentation belonging to the Customer which may be in the possession of Excel until all moneys due under these Terms or any other contract with the Customer have been paid.
7.10 All sums payable to Excel under these Terms shall become due immediately upon termination of these Terms despite any provision to the contrary.
7.11 Payment is not considered received from the Customer until Excel receives notification of cleared funds representing the amount paid in its bank account or the bank account of its agent or nominee.
7.12 The Customer shall make all payments due under these Terms without any deduction whether by way of set-off counterclaim or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Excel to the Customer.
8. Product Inspection
8.1 Excel shall, so far as is practicable, possible and reasonable, permit the Customer at reasonable times to inspect the Products and/or Bespoke Products prior to delivery and carry out functionality tests upon the same. The Customer shall be responsible for the payment of all costs incurred in relation to such inspection and testing and shall provide at its own cost all necessary material, information and samples required for such tests.
8.2 Upon delivery of the Products and/or the Bespoke Products to the Customer, the Customer will inspect the Products and/or Bespoke Products.
8.3 If during the inspection of the Products and/or Bespoke Products by the Customer, the Customer discovers any damage to, shortage of or any fault in the specification of the Products and/or Bespoke Products, the Customer must notify Excel in writing of such damage (and any further damage discovered) or shortage or fault in specification within 24 hours of delivery, which for the purpose of this Clause only, time shall be of the essence. Failure to comply with this time period will render any potential claim void.
8.4 Once notified in accordance with Clause 8.3 of the damage, shortage or fault in specification by the Customer, Excel will within a reasonable period contact the Customer to discuss matters to enable it to consider and determine (at its discretion and where appropriate) a resolution.
8.5 In the event that Excel accepts and determines that the Products and/or Bespoke Products are to be replaced or a credit note issued, Excel is under no obligation to provide any replacement Products and/or Bespoke Products or to issue a credit note until the Products and/or Bespoke Products have been returned to it by the Customer in their original condition with all packaging and documentation.
9. No Warranty
9.1 Unless otherwise stated and agreed in writing, Excel gives no express warranty to the Customer in respect of the Products and/or Bespoke Products or their performance or durability.
9.2 Excel will where possible pass on such guarantees as manufacturers/suppliers provide and will notify manufacturer/suppliers of any written complaints made by the Customer to it relating to any Products and/or Bespoke Products manufactured/supplied by them.
9.3 Any details concerning output or other technical information given by Excel to the Customer are based on maximum operating speeds which Excel reasonably estimates may be attained using good quality components under good operating conditions. The Customer acknowledges and agrees that such information is an estimate only and is not guaranteed.
10.1 All Products and Bespoke Products supplied by Excel are believed to be of satisfactory quality and fit for their purpose. The Customer must however fully satisfy itself that the Products and/or Bespoke Products are of the correct specification and designed for the required purpose.
10.2 The Customer shall only make a claim of any nature, if any, arising out of or in connection with these Terms against Excel and shall not make any claim of any nature against any persons or persons involved in the performance of these Terms.
10.3 Excel shall not be liable for any defect in any products and materials supplied nor for any works carried out which arise from fair wear and tear, abuse, accident, wilful damage, negligence of the Customer, damage caused by any third party, failure to follow Excel’s instructions (whether oral or in writing) or any instructions of the manufacturer or supplier of the Products and/or Bespoke Products or alterations made or actions taken without Excel’s approval, or damage caused as a result of working on the Products and/or Bespoke Products and in any event the Customer should ensure that any work carried out on or with the Products and/or Bespoke Products is carried out by individuals or professionals with appropriate skills, qualifications and experience.
10.4 In no event shall Excel be liable to the Customer for any damages resulting from loss of data or use, corruption of data, loss of profits or business or any indirect or consequential loss or damage.
10.5 Subject as expressly provided in these Terms and except where the Products and/or Bespoke Products and/or Services are supplied to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.6 Excel’s liability to the Customer in respect of breach of contract or breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with these Terms will be limited to taking reasonable steps to correct any such breach at Excel’s expense and Provided that the amount of its liability shall be limited in any event to a total of the value of the Quotation to include interest and costs save that this provision shall have no application to any liability in respect of death or personal injury or any other liability for which exclusion or restriction is prohibited by law.
10.7 Excel shall not be liable for the failure of the operation of its website or any connected or linked website and shall not be liable (including any liability for negligence) for the acts or omissions of telecommunications service providers or for failures of, or faults in their networks and equipment or any other failure of fault connected therewith.
11.1 The Customer will indemnify Excel against any damages, losses, costs, claims or expenses, or any other sums incurred by it in respect of any loss Excel suffers directly or indirectly, or any claim brought against it by any third party in relation to:
11.1.1 Any loss, injury or damage wholly or partly caused by the Products and/or Bespoke Products or their use.
11.1.2 Any loss, injury or damage in any way connected with the performance of these Terms.
11.1.3 Any costs, claims or expenses of any third party involved in recovering outstanding monies due from the Customer to Excel
Provided that this clause will not require the Customer to indemnify Excel against any liability for the negligence of Excel.
12. Confidential Information
12.1 Excel and the Customer shall not except as authorised or required by these Terms, or except as required by law, at any time (whether during or after the termination of these Terms) reveal to any person, firm or company, or use for its own benefit, any of the Confidential Information and it shall not use or attempt to use any Confidential Information in any manner which may injure or cause loss or may be calculated to injure or cause loss whether directly or indirectly to the other party Provided that the provisions of this clause 12 shall cease to apply to information which enters the public domain other than directly or indirectly by reason of the default of Excel or the Customer.
12.2 The parties shall use their reasonable endeavours to preserve the Confidential Information and to prevent the publication or disclosure of any Confidential Information.
12.3 The Customer shall not except as authorised or required by these Terms or except as required by law, without the express written consent of Excel and subject to such conditions as Excel may in its discretion reasonably require to protect its Confidential Information, reveal to any person, firm or company or use for its own benefit, or use for any other purpose than that pursuant to these Terms any Confidential Information of Excel including any created during the provision of the Products and/or Bespoke Products and/or Services.
12.4 Excel shall be entitled to make and retain copies of any data, information, material or documentation provided to it by the Customer in the course of providing the Products and/or Bespoke Products and/or Services as it deems necessary for the full and proper maintenance of its business records.
12.5 Unless the Customer informs Excel to the contrary, Excel may use non-confidential information in relation to the Products and/or Bespoke Products and/or Services for promotional purposes.
13.1 The Customer may only terminate these Terms in accordance with provisions of clause 2.
13.2 Excel shall be entitled without prejudice to the other rights and remedies available to it, either to terminate the whole or any part of these Terms or to suspend any future service or supply in any of the following events:
13.2.1 If any debt due and payable by the Customer to Excel is unpaid on the due date of payment, or if the Customer is in breach of its obligations under these Terms which in the case of a breach capable of remedy is not remedied by the Customer within 14 days of receipt by it of a notice specifying the breach and requiring its remedy
13.2.2 The Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation or an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer, or if the Customer ceases or threatens to cease to carry on business or Excel reasonably apprehends that such events are about to occur in relation to the Customer.
13.3 The termination of these Terms howsoever arising shall be without prejudice to the rights and duties of either the Customer or Excel accrued prior to termination.
13.4 Failure by Excel to enforce or partially enforce any provision of these Terms will not be construed as a waiver of any of its rights under these Terms.
14. Additional Products and Services
For the avoidance of doubt, Excel shall only be obliged to provide the Products and/or Bespoke Products and/or Services as detailed in these Terms. In the event that the Customer wishes Excel to provide any further products or services or carry out any other action in relation to the same or any action not originally envisaged as part of the Quotation such will be provided at Excel’s absolute discretion and will be subject to the payment by the Customer of all costs, fees and expenses associated with the same and upon terms agreed between the Customer and Excel.
15.1 All drawings, descriptive matter, prices, specifications and advertising issued by Excel and any descriptions or illustrations contained in Excel’s catalogues or brochures or displayed on its website are issued or published for the sole purpose of giving an approximate idea of the good(s) and service(s) described in them and will not be binding upon Excel. They do not form part of these Terms and, subject to Clause 15.2, all patents, copyrights, design rights and all other rights in relation to such items shall remain vested in Excel.
15.2 The Products and/or Bespoke Products or part of them are or may be protected by patents, copyrights, design rights and other rights and any such rights or confidential information relating to the Products and/or Bespoke Products remain with their legal owner solely and absolutely.
15.3 Excel may assign, licence or sub-contract all or any part of its rights or obligations under these Terms without the Customer’s consent.
15.4 These Terms are personal to the Customer who may not assign licence or sub-contract all or any of its rights or obligations under these Terms without Excel’s prior written consent.
15.5 The Customer acknowledges that no data transmissions over the Internet can be guaranteed to be 100% secure or free from viruses or faults and Excel cannot ensure or warrant the security of any information transmitted by it to the Customer and the Customer accepts such data transmission at its own risk.
15.6 Any variation to these Terms shall have no effect unless expressly agreed in writing between the parties
15.7 Excel shall not be liable for any delays caused by third parties or for any failure to perform its obligations under these Terms due to unforeseen circumstances or circumstances beyond its control including without limitation adverse weather conditions, flood or fire.
15.8 Notwithstanding the other provisions of these Terms and for the avoidance of doubt, the Customer accepts and acknowledges that Excel is not able to give any guarantee whatsoever in connection with the discontinuation of any Products and Services in the future or any fix or repair or replacement times with regard to the resolution of any issues pursuant to these Terms particularly in circumstances where such discontinuation or fix or repair or replacement works are outside the control of Excel.
15.9 Any notice required by these Terms to be given by the Customer to Excel shall be in writing and shall be served by sending the same by registered post or recorded delivery to its registered office as set out above or as otherwise notified to the Customer by Excel in accordance with this clause and any receipt issued by the postal authorities shall be conclusive evidence of the fact and date of posting of any such notice.
15.10 Any notice required by these Terms to be given by Excel to the Customer shall be in writing and shall be served by sending the same by registered post or recorded delivery to the Customer’s registered office or principal place of business or last known place of address in accordance with this clause and any receipt issued by the postal authorities shall be conclusive evidence of the fact and date of posting of any such notice.
15.11 These Terms shall operate on the footing that if any of the provisions either in part or in whole is held by a Court or any other competent authority not to be valid or enforceable, the validity and enforceability of the remaining provisions of these Terms and the remainder of the affected provision shall continue to apply.