GENERAL CONDITIONS OF SALES AND SERVICES OF NOVOTEK UK & IRELAND LIMITED, CARTELLI HOUSE LEEDS, LS14 1PQ,
Company Registration Number: SC274480
ARTICLE 1: APPLICABILITY OF THESE CONDITIONS
These conditions apply to all agreements within the context of which Novotek UK & Ireland Limited, with registered office in Leeds, hereinafter referred to as: “Novotek”, delivers or makes available goods, including computer hardware and software, and/or provides any other service. They also apply to the declarations to be made in that context. Novotek’s counterparty is hereinafter referred to as: the “buyer”. Any general conditions that the buyer may present to Novotek at any time are hereby explicitly rejected.
ARTICLE 2: CONCLUSION AND CONTENT OF THE AGREEMENT; SECURITY; LICENCE; INTELLECTUAL AND INDUSTRIAL PROPERTY
- Unless otherwise stated by Novotek, all the offers it issues are without obligation and valid for one month after being sent. Novotek is entitled to withdraw a non-binding offer within three working days after receiving acceptance. With due regard for the above, the agreement between Novotek and the buyer will be concluded by the buyer unconditionally accepting Novotek’s offer or by Novotek accepting the buyer’s order, whether or not under certain conditions. If Novotek issues a written confirmation, its content will be deemed to have been agreed unless the buyer protests against it in writing within eight working days of it being sent.
- Novotek will always be entitled to request the provision of adequate security prior to the conclusion of the agreement. Even after the agreement has been concluded Novotek will be entitled to do so if it has a reasonable suspicion that the buyer will fail to comply with its obligations. This will apply in any case if the buyer fails to comply with a payment obligation towards Novotek that has become due and payable, in spite of having been given notice of default.
- If Novotek sells software, or sells goods into which software has been incorporated, it will be agreed between the parties that, in spite of the use of words such as “purchase”, “sale” or “delivery”, only a personal, non-transferable and non-exclusive license right will be granted in respect of this software, with the content of the license being explicitly determined, if the software has been purchased by Novotek from third parties, by the license terms drawn up by the third parties concerned, and, otherwise, by the license terms of Novotek. Novotek will make a copy of the license terms available to the buyer free of charge at the latter’s first request.
- Novotek’s obligations in respect of standard software are confined to providing the buyer with a data carrier containing the software together with any manual made available by Novotek or its supplier, as well as, in the event that this is agreed, configuring this software on the relevant computer(s) of the buyer and performing maintenance.
- If Novotek sells software and/or hardware, it will be agreed between Novotek and the buyer that the buyer will acknowledge all intellectual and industrial property rights of Novotek and of third parties from which Novotek purchases the software and/or hardware concerned and will fully respect these rights.
ARTICLE 3: DELIVERY
- Unless the contrary is agreed in writing, hardware and software will be delivered ex works from Novotek’s warehouse in Leeds. Terms of delivery will be interpreted in accordance with the most recent edition of the Incoterms.
- The buyer has an obligation towards Novotek to take receipt immediately of the purchased goods, or to accept performance of the service, as soon as this (these) is (are) offered to the buyer. If the buyer fails to take receipt of the good or service concerned, it will be deemed to have been delivered at the time it was offered by Novotek, and Novotek will keep the good or software to be delivered in its possession at the buyer’s expense and risk. In such a case Novotek is entitled to issue an invoice to the buyer. Novotek is not obliged to insure goods that it is keeping in its possession at the buyer’s risk.
- Agreed delivery periods will be regarded, even if a particular final date or a particular period has been agreed, as approximations and will not be strict deadlines, unless the contrary is explicitly agreed. In the event that delivery does not take place on time, Novotek must be given written notice of default and be granted a reasonable period, to be determined following consultation with Novotek, within which it can still comply.
ARTICLE 4: ACCEPTANCE TEST; HANDOVER
- Novotek is entitled to request that, within the context of the delivery of hardware and/or software, or within the context of the configuration of the software it has made available, a handover will take place. Within this context Novotek may present the buyer with an acceptance form, which will also be regarded as a handover document, the provisions of which must be complied with by the buyer. The buyer is obliged to inspect the service provided by Novotek on the occasion of the handover and to inform Novotek, on an acceptance form to be made available by Novotek, of whether it is accepting the service provided, whether or not subject to certain provisos, or rejecting it, with an indication of the defects identified. Following acceptance, the service will be deemed to have been handed over and the risk associated with the service provided by Novotek will lie with the buyer, who will consequently owe the agreed price. In this case Novotek will also be discharged from any liability for defects that the buyer should reasonably have discovered at the time of the acceptance.
- Novotek’s liability will always be limited to the levels stipulated in article 9 of these general conditions.
ARTICLE 5: INSPECTION AND COMPLAINTS
- If Novotek does not request a handover, the provisions of this article apply.
- The buyer is obliged to inspect the service provided by Novotek immediately after taking receipt of it, in so far as such an inspection is reasonably possible, and in all cases must perform an inspection with regard to quantities and visible defects. If the buyer wishes to make a complaint in this respect, it must in all cases inform Novotek in writing within five working days of delivery and make a note on the consignment note, if one has been presented.
- In addition, within 7 working days of delivery the buyer must inspect the delivered items thoroughly to ensure they correspond to what has been agreed, and, if a defect comes to light, must submit a written complaint to Novotek within this period.
- If the defect could not under any circumstances have been discovered within the periods mentioned in the two paragraphs above, the buyer must submit a written complaint to Novotek within 7 working days of discovering the defect, or within 7 working days of the point when it could reasonably have discovered it, and in any case within a period of one year of the defect arising.
- If Novotek acts upon a complaint made by the buyer, this does not mean that Novotek is accepting liability. If it emerges that a complaint has been wrongly made, Novotek will be entitled to charge for the work it has carried out and the goods delivered at the rates it usually applies.
ARTICLE 6: RETENTION OF TITLE
All deliveries are made subject to retention of title. Novotek retains ownership of the goods and software delivered or to be delivered to the buyer under any agreement until the buyer:
- has paid the purchase price, plus any interest and costs owed, in full, and
- has settled all claims relating to work that Novotek has carried out or will carry out for it within the context of the relevant agreements, and
- has settled the claims that Novotek acquires against it in the event that it fails to comply with the obligations referred to above.
ARTICLE 7: PRICES, PAYMENT AND COSTS
- Unless Novotek states otherwise in writing, the prices it offers are based on delivery ex works from its warehouse in Leeds office and are those valid at the time of delivery. The prices stated by Novotek are exclusive of VAT and installation and configuration work, unless indicated otherwise.
- Unless agreed otherwise, payment must be made within 30 days of the invoice date. The buyer may under no circumstances assert any right to setoff, deferral or discount. As soon as the payment period expires, the buyer will be in default without any notice of default being required, and from this expiry date will owe the statutory commercial interest on the final invoice amount.
- The buyer will owe Novotek all extrajudicial and judicial costs in the event that it fails to pay a due and payable amount owed to Novotek in spite of receiving a demand for this payment. These costs will be calculated on the basis of the tariffs charged by the third party engaged by Novotek for comparable matters (possibly per unit of time), plus the costs that reasonably have to be paid to third parties by this third party. With regard to judicial costs, the amount to be estimated by the court outside of any agreement will apply as a minimum amount.
ARTICLE 8: GUARANTEE
- Novotek guarantees the proper functioning of the hardware it delivers for one year and the proper functioning of the software it delivers for 90 days. This guarantee extends no further than the performance to be expected of the hardware and/or software during the guarantee period in accordance with the supplied user manual or, if this is not supplied, in accordance with the supplier’s specifications.
- If Novotek fails to comply with its guarantee obligation, it will be entitled, within a reasonable period, to repair the faults free of charge or, if this is not possible for Novotek, or cannot reasonably be demanded of it, to take back the delivered goods against repayment of the purchase price.
- The content of the guarantee is determined only by the provisions set out with regard to shortcomings in the English Civil Code. The limitation of liability described in the following article applies.
ARTICLE 9: LIABILITY
- If Novotek acknowledges (something it will always do with reservation, unless indicated to the contrary) that it has failed imputably to comply with its obligations or this is otherwise established, it will be entitled to inform the buyer, within a reasonable period of the buyer invoking this failure to comply, that:
- it will carry out a redelivery or deliver any missing items free of charge, or
- will rectify the service previously provided or carry it out again free of charge, whereby any replacement parts may be new or reconditioned, at Novotek’s reasonable discretion.
- If, after issuing the above notification to the buyer, Novotek meets its obligations within a reasonable period, this will mean that it will have complied with the agreement in the proper manner and the buyer will not be entitled to any compensation.
- Novotek will not be liable, and any claim in respect of any alleged shortcoming will lapse, if the buyer has made changes and/or modifications to and/or carried out repairs on the delivered goods itself (or has had such action taken by another party), if the delivered goods have not been or are not being used or handled carefully in accordance with the enclosed or applicable (factory) instructions or user manual, or have otherwise been used or handled improperly or negligently, if the delivered goods are being or have been used or employed for purposes other than those for which they are intended – including situations where the product is used in combination with any product or software that has not been delivered by Novotek, while the product/software delivered by Novotek does itself comply with the agreement – or if the delivered goods have been used in a manner that Novotek could not reasonably have expected, or have been manufactured correctly in accordance with the buyer’s instructions, and this had an influence on the fact that the damage occurred.
- If Novotek acknowledges that it has failed imputably to comply with its obligations or this is otherwise established, and damage arises for the buyer as a result, Novotek’s liability is limited to the price agreed for the service in question. If the shortcoming arises within the context of a continuing performance contract, Novotek’s liability is limited to the total sum of the invoice amounts charged to the buyer in the six months preceding the occurrence of the damage. The limitation of liability contained in this paragraph does not apply if and in so far as there was intent or willful recklessness on the part of Novotek or its management.
- In this article, imputable failure to comply is also understood to include unlawful action.
ARTICLE 10: FORCE MAJEURE
In addition to what the law considers as force majeure, this term will also be deemed to include strikes and/or sickness on the part of the employees of Novotek, non-performance and/or force majeure on the part of its suppliers, carriers or other third parties involved in the agreement, traffic congestion, natural disasters, war or mobilisation, impediments imposed by any government, fire or other accidents at its premises, as well as other circumstances in so far as the consequences of these circumstances mean that the (further) performance of the agreement cannot be demanded of Novotek or cannot be demanded in full.
ARTICLE 11: APPLICABLE LAW AND COMPETENT COURT
- All agreements concluded by Novotek will be governed by English law, to the exclusion, if it would otherwise apply, of the United Nations Convention on Contracts for the International Sale of Goods.
- All disputes that arise between Novotek and the buyer to which these general conditions apply will, unless mandatory law prevents this, be settled in the first instance by Leeds Court, without prejudice to the authority of Novotek to bring legal proceedings against the buyer before a court that otherwise has competence.