GENUINE SOLUTIONS LTD TERMS AND CONDITIONS OF TRADE (SALE)
1. Contract Terms
1.1 Unless other terms and conditions are expressly accepted by Genuine Solutions Ltd by means of a specific written amendment signed by a director of Genuine Solutions Ltd the contract (and, unless otherwise agreed, all other contracts with Genuine Solutions Ltd or any associated company of Genuine Solutions Ltd) will be on the terms and conditions set out below and overleaf (“the Contract Terms”) to the exclusion of any other terms and conditions (except those implied in favour of a seller which are not inconsistent with the Contract Terms) whether or not the same are endorsed upon, delivered with or referred to in any purchase order or other document delivered or sent by the Customer to Genuine Solutions Ltd. Any reference overleaf to an order of the Customer (the “Customer’s Order”), specification or like document will not be deemed to imply that any terms or conditions endorsed upon, delivered with or referred to in the Customer’s Order, specification or like document will have effect to the exclusion or amendment of the Contract Terms.
1.2 In these Contract Terms:
1.2.1 “associated company” means any company which is either the parent undertaking or a subsidiary undertaking of the party in question or a subsidiary undertaking of such party’s parent undertaking or any other person controlled by or under the same control direct or indirect as the party in question. “Parent undertaking” and “subsidiary undertaking” shall have the meanings attributed thereto in section 1159 of the Companies Act 2006.
1.2.2 “Business day” means a day on which banks in London are open for a full range of banking transactions.
1.2.3 “Dead on arrival” means (in the case of equipment) equipment which on delivery is completely incapable of operation because of a defect in that equipment.
1.2.4 “Contract” means the contract between Genuine Solutions Ltd and the Customer for the sale and purchase of the Goods in accordance with these terms.
1.2.5 “Customer” means the person or company who purchases the Goods (as defined below).
1.2.6 “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.3 Amendments to these Contract Terms may be made by Genuine Solutions Ltd from time to time by notification to the Customer and any such amendment shall become operative in respect of new Contracts agreed starting from the day 7 days after the date of notification by Genuine Solutions Ltd.
2.1 Genuine Solutions Ltd may accept or reject the Customer’s Order at its discretion. A Customer Order shall not be accepted, and no binding obligations in relation to a Customer Order will not arise, until the earlier of (a) Genuine Solutions Ltd’s written acceptance of the Customer Order; or (b) Genuine Solutions Ltd delivering the goods to be supplied pursuant to the Customer Order (the “Goods”) or notifying the Customer that the Goods are ready to be delivered.
2.2 Genuine Solutions Ltd will endeavour to deliver the Goods (which expression includes any of them or any part of them) within the time agreed, and if no time is agreed, within a reasonable time. Any dates quoted for delivery are approximate only and time of delivery is not of the essence. Genuine Solutions Ltd will not be liable for any delay or loss or damage of any kind whatsoever caused directly or indirectly by any delay in the delivery of the Goods caused by an event outside of its reasonable control or the Customer’s failure to provide adequate delivery instructions or any other instructions relevant to the supply of the Goods.
2.3 Genuine Solutions Ltd may make delivery of the Goods by instalments which will be invoiced separately. Any delay in delivery of any instalment, or defect in Goods supplied in any instalment shall not entitle the Customer to cancel any other instalment.
2.4 Genuine Solutions Ltd will arrange carriage of the Goods to the address specified in the Customer’s order unless the Customer indicates on its order that the Customer (or its representative, which shall include any courier engaged by the Customer) will collect the Goods. Where Genuine Solutions Ltd arranges carriage a delivery charge in accordance with Genuine Solutions Ltd’s tariff (as published from time to time and a copy of which will be available at Genuine Solutions Ltd’s principal place of business), or as otherwise agreed, will be added to and form part of the price of the Goods.
2.5 The Goods shall be deemed to be delivered to the Customer upon:
2.5.1 hand-over of the Goods to the Customer (or its representative) at Genuine Solutions Ltd’s premises where Genuine Solutions Ltd does not arrange carriage; or
2.5.2 unloading of the Goods at the address specified in the Customer’s order (or any other address which Genuine Solutions Ltd may subsequently agree), where Genuine Solutions Ltd does arrange carriage.
2.6 Short shipment of the Goods (i.e. a shortfall in the Goods delivered) and/or (where Genuine Solutions Ltd is arranging carriage) any damage in transit to the Goods must be notified on the carriers own proof of delivery report and notified in writing to Genuine Solutions Ltd within 5 days.
2.7 A claim for non-delivery will not be considered unless Genuine Solutions Ltd is advised in writing within 5 days of the date which Genuine Solutions Ltd advised the Customer was the date on which the Goods were due to arrive and in any case shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market possible less the price of the Goods.
2.8 In the event of failure by the Customer to give the appropriate notice or notices or to return the Goods as specified in this Clause 2, the Customer’s claim will be deemed to have been waived and will be absolutely barred.
2.9 Without prejudice to Clauses 2.6 and 2.8 , Genuine Solutions Ltd’s total liability to the Customer in respect of short-shipment and/or Goods damaged in transit shall be as follows:
2.9.1 It is the Customer’s responsibility to check all packages for evidence of tampering and/or damage before signing to accept delivery of the Goods. If the Customer signs to accept delivery of the Goods (whether in the form of the carrier’s standard delivery note or otherwise), the Customer’s claim in respect of any short shipment or damage to the Goods in transit will be deemed to have been waived and will be absolutely barred.
2.9.2 Where the Customer reasonably refuses to sign for delivery of any Goods because of evidence of tampering and/or damage to the Goods in transit then subject to the Customer’s compliance with the notice requirements of Clause 2.6, Genuine Solutions Ltd will (at its sole discretion):
22.214.171.124 within a reasonable time, repair or replace those Goods so lost and/or damaged, or substitute (in accordance with Clause 9.2) substantially equivalent goods; or
126.96.36.199 credit the Customer’s trading account in respect of any such Goods;
but in no circumstances will Genuine Solutions Ltd be liable for any other loss or damage of any kind whatsoever caused directly or indirectly by any such short-shipment and/or damage in transit and any liability under this clause 2.9 shall be limited to the price paid for the Goods.
2.10 Goods which are “dead on arrival” must be returned to Genuine Solutions Ltd within 7 days of delivery in which case Genuine Solutions Ltd will (at its sole discretion):
2.10.1 within a reasonable time, repair or replace those Goods, or substitute (in accordance with Clause 9.2)
2.10.2 credit the Customer’s trading account in respect of those Goods. In the absence of such return the Customer will be deemed to have accepted the Goods.
2.11 Any Goods which the Customer is entitled to return to Genuine Solutions Ltd under these Contract Terms must be sent (together with all their accessories and their packaging) to arrive at Genuine Solutions Ltd’s premises unmarked (which includes, without limitation, without any damage to packaging). The Customer shall bear the cost of any carriage for returned Goods and the Goods shall be returned at the Customer’s risk. All returned Goods must be accompanied by the requisite documentation (an “Equipment Return Form”) and the return must be authorised in advance by Genuine Solutions Ltd (save that the Customer shall not be obliged to return any packaging with any Goods returned under warranty in accordance with Clause 3).
2.12 Any Goods sold “Electronic Serial Number (ESN)-free” that are delivered “ESN-locked” will either (at Genuine Solutions Ltd’s sole discretion) be released by Genuine Solutions Ltd or those Goods which are locked will be replaced free of charge provided that details of the relevant ESN-locked Goods are supplied in writing to Genuine Solutions Ltd by 5.00pm on the next business day following collection of the same by the Customer from Genuine Solutions Ltd’s premises or delivery at the Customer’s address in accordance with Clause 2.4 (as the case may be). This Clause is applicable to Goods comprising cellular telecommunications terminal equipment only.
3. Warranty, limitation and exclusion of liability
3.1 Genuine Solutions Ltd provides the Customer with a ‘defective goods’ warranty in respect of the Goods, which is subject to the following to the following limitations and requirements.
3.1.1 If any Goods are proved to the reasonable satisfaction of Genuine Solutions Ltd to be defective in material or workmanship then:
188.8.131.52 if the Goods are returned to Genuine Solutions Ltd within 3 months of the date of their delivery, Genuine Solutions Ltd will at its option (a) repair the Goods; (b) replace the Goods; (c) substitute substantially equivalent goods (in accordance with Clause 9.2; or (d) credit the Customer’s trading account in respect of any such Goods. For the avoidance of doubt, where Genuine Solutions Ltd replaces Goods or provides substitute goods, the original Goods returned by the Customer will belong to Genuine Solutions Ltd.
184.108.40.206 if the Goods are not returned in accordance with Clause 220.127.116.11 (and/or in respect of any repaired, replacement or substituted Goods supplied by Genuine Solutions Ltd in accordance with Clause 18.104.22.168), Genuine Solutions Ltd will use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given to Genuine Solutions Ltd in respect of the Goods and where such warranty or guarantee applies this may result in Genuine Solutions Ltd (a) attempting to repair the Goods and/or (b) returning them to the manufacturer for repair (in which case, Genuine Solutions Ltd reserves the right to charge a handling fee in accordance with its rates from time to time, a copy of which will be available on request from Genuine Solutions Ltd’s principal place of business) provided always that these obligations on the part of Genuine Solutions Ltd will not apply where:
(a) the Goods have been altered in any way whatsoever or have been subjected to misuse or unauthorised repair; or
(b) the Goods have been improperly installed or connected (unless Genuine Solutions Ltd carried out such installation and connection); or
(c) the Customer has failed to observe any maintenance requirements relating to the Goods; or
(d) the Customer is in breach of this or any other Contract made with Genuine Solutions Ltd; or
(e) the Customer fails to comply with clause 2.11; or
(f) the Goods are expressly sold on a “no warranty” basis or in respect of any promotional items supplied from time to time with or in connection with the Goods.
3.1.2 Except as expressly set out in this Clause 3, Genuine Solutions Ltd provides the Customer with no warranty, makes no representation and accepts no liability in relation to any Goods which are found to be defective.
3.1.3 In no circumstances shall the Customer be entitled to be provided with any loan equipment.
3.2 Genuine Solutions Ltd’s liability for loss or damage of any kind whatsoever (however such liability arises and whether in contract, tort, for breach of statutory duty or otherwise) under or in connection with:
(a) this Contract and/or
(b) any matter collateral to this Contract and/or
(c) in respect of any representation or misrepresentation (other than a fraudulent misrepresentation) made by or on behalf of Genuine Solutions Ltd
shall in no circumstances exceed the sum paid by the Customer to Genuine Solutions Ltd in respect of those Goods in respect or in connection with which such liability arises (which in the case of Goods supplied as part of a consignment shall mean only those Goods directly in respect or in connection with which such liability arises and not the balance of the consignment) provided that nothing in this clause shall limit or exclude liability for death or personal injury arising from Genuine Solutions Ltd’s negligence.
3.3 Genuine Solutions Ltd endeavours to purchase Goods from reputable suppliers and takes all reasonable steps to ensure the Goods purchased are original goods and do not infringe or breach any third-party intellectual property rights. However, the Customer agrees that in the event Goods purchased by Genuine Solutions Ltd and then supplied to the Customer in accordance with these terms are found to infringe the intellectual property rights of a third party, Genuine Solutions Ltd’s liability to the Customer shall be limited to the price paid for the Goods.
3.4 Save as provided in clauses 2.9, 2.10, 3.1, 3.2 and 3.3 Genuine Solutions Ltd will be under no liability under the contract for any personal injury, death, loss or damage of any kind whatsoever (other than death or personal injury resulting from Genuine Solutions Ltd negligence, fraud or fraudulent misrepresentation or any other losses which cannot be excluded or limited by applicable law) whether consequential or otherwise including but not limited to loss of profits and genuine solutions ltd hereby excludes all conditions, warranties and stipulations express or implied, statutory, customary or otherwise which but for such exclusion would or might subsist in favour of the customer except that such exclusion will not apply to any implied condition that Genuine Solutions Ltd has or will have the right to sell the goods when the property is to pass.
3.5 save as provided in clauses 2.99, 2.10, 3.1, 3.2 and 3.3in no circumstances will genuine solutions ltd or its employees, agents or subcontractors be liable for any loss or damage of any kind whatsoever (other than death or personal injury resulting from genuine solutions ltd’s negligence, fraud or fraudulent misrepresentation or any other losses which cannot be excluded or limited by applicable law) whether consequential or otherwise caused directly or indirectly by any negligence or other tortious act or breach of statutory duty on the part of genuine solutions ltd or on the part of any of its employees, agents or sub-contractors in connection with or arising out of the supply of the goods or in connection with any statement (other than a fraudulent misrepresentation) given or made (or advice not given or made) by or on behalf of Genuine Solutions Ltd.
3.6 Genuine Solutions Ltd only engages in business-to-business sales and does not contract with, or sell directly to, consumers. Individual consumers should, therefore, not purchase from Genuine Solutions Ltd.
Subject to Clause 2.9 but notwithstanding any other Contract Term, risk in the Goods shall pass to the Customer when the Goods are delivered to or collected by the Customer in accordance with Clause 2 (Delivery).
5. Property in the Goods
5.1 The property (both legal and equitable) in the Goods shall not pass to the Customer until:
5.1.1 the purchase price of the Goods has been paid in full in cleared funds; and
5.1.2 payment is made in full to Genuine Solutions Ltd of any sum which is at the date of the Contract or may thereafter become due or owing from the Customer to Genuine Solutions Ltd.
5.2 Until property in the Goods has passed to the Customer or until delivery of the Goods to a third party pursuant to the permission given below, the Customer will:
5.2.1 hold the Goods as bailee for Genuine Solutions Ltd;
5.2.2 store the Goods separately from all other material in the Customer’s possession;
5.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
5.2.4 insure the Goods from the date of delivery with a reputable insurer, against all risks and for an amount at least equal to their value (including any interest payable to Genuine Solutions Ltd);
5.2.5 ensure that the Goods are clearly identifiable as belonging to Genuine Solutions Ltd;
5.2.6 not obliterate or remove any identifying mark on the Goods or their packaging; and
5.3 on reasonable notice, permit Genuine Solutions Ltd to inspect the Goods during the Customer’s usual business hours and to provide Genuine Solutions Ltd with such information concerning the Goods as Genuine Solutions Ltd may request from time to time. Prior to the property in the Goods passing to the Customer Genuine Solutions Ltd permits the Customer to deliver the Goods to a third party pursuant to a bona fide and arm’s-length agreement to resell the Goods but such liberty will (a) cease upon the termination of the Contract and (b) be without prejudice to Clause 5.1.
5.4 Genuine Solutions Ltd may at any time after payment for the Goods has become due take possession of the Goods (which for the avoidance of doubt will include the right to stop the Goods in transit) and remove them and the Customer shall be deemed to have granted irrevocable authority to Genuine Solutions Ltd to enter upon the Customer’s premises or other premises where the Goods may be by its employees or agents to take possession of the Goods and (if necessary) to dismantle the Goods from any thing to which they are attached.
5.5 If prior to the expiry of 7 days from the date when Genuine Solutions Ltd has taken possession of the Goods the Customer pays all sums then due or owing to Genuine Solutions Ltd together with the costs of re-taking possession of the Goods, Genuine Solutions Ltd will re-deliver the Goods to the Customer at the Customer’s expense. If within the 7-day period the Customer fails to pay all sums then due or owing to Genuine Solutions Ltd, Genuine Solutions Ltd may re-sell the Goods. If the sums received by Genuine Solutions Ltd following any resale of the Goods pursuant to clause 5.5.1 do not exceed all sums due or owing from the Customer to Genuine Solutions Ltd, including but not limited to the costs of taking possession of and re-selling the Goods, the Customer will pay to Genuine Solutions Ltd any shortfall.
5.6 Genuine Solutions Ltd will have the right to maintain an action against the Customer for the price of the Goods notwithstanding that property in the Goods has not passed.
5.7 Nothing in these Contract Terms will the Customer be the agent of Genuine Solutions Ltd, and the Customer agrees not to hold itself out as agent, in respect of any resale of the Goods by the Customer so as to confer upon a third-party rights against Genuine Solutions Ltd.
6. Price and Payment
6.1 Unless expressly stated otherwise all prices are exclusive of Value Added Tax (“VAT”) which shall be charged at the rate and in the manner prescribed by law from time to time.
6.2 Subject (unless Genuine Solutions Ltd agrees otherwise) to the receipt by Genuine Solutions Ltd of bank details and two trade references acceptable to Genuine Solutions Ltd (in its absolute discretion), a cheque purchase limit (“CP Limit”) will be allocated to the Customer, and provided that the indebtedness of the Customer to Genuine Solutions Ltd (including, without limitation any payment in uncleared funds made by the Customer to Genuine Solutions Ltd hereunder) remains within the CP Limit, payment by cheque will be permitted.
6.3 Where no CP Limit has been agreed by Genuine Solutions Ltd or if the CP Limit has been removed, or if the price of the Goods (together with any other indebtedness of the Buyer to Genuine Solutions Ltd) exceeds the CP Limit, then the Goods will not be released to the Customer, whether by Genuine Solutions Ltd or by the carrier referred to in Clause 2.4 (as the case may be), until Genuine Solutions Ltd is paid cleared funds by any method acceptable to Genuine Solutions Ltd the amount payable on the delivery of the Goods as advised by Genuine Solutions Ltd.
6.4 Where a CP Limit has been agreed Genuine Solutions Ltd may in its absolute discretion set alter and/or remove the CP Limit.
6.5 Where a credit account has been agreed in writing by Genuine Solutions Ltd:
6.5.1 a credit limit will be allocated to the Customer, and Genuine Solutions Ltd may in its absolute discretion set alter and/or remove the credit limit;
6.5.2 unless Genuine Solutions Ltd (in its absolute discretion) agrees from time to time to accept payment by any other method no Goods will be released to the Customer until the Customer has executed and the Customer’s bank has accepted, a direct debit mandate to Genuine Solutions Ltd’s satisfaction, authorising Genuine Solutions Ltd to collect from the Customer’s specified account(s) any outstanding sums whatsoever due from the Customer to Genuine Solutions Ltd on the payment date(s) specified by Genuine Solutions Ltd and advised to the Customer from time to time; and
6.5.3 if the price of the Goods (together with any other indebtedness of the Customer to Genuine Solutions Ltd) does not exceed the Customer’s credit limit at that time, the price of the Goods will become payable upon delivery and payment will be made by direct debit on the payment date(s) specified by Genuine Solutions Ltd and advised to the Customer from time to time.
6.6 Any failure to make payment when due (all payments becoming due when on delivery , including, without limitation, where any cheque provided by a customer by way of payment is dishonoured or where any direct debit arrangement is cancelled, will incur an immediate administration charge of £20.00 plus VAT, which is a genuine pre-estimate of the costs imposed on Genuine Solutions Ltd as a result of such failure, payable in addition to the outstanding payment due.
6.7 The Customer, by agreeing to be bound by these Contract Terms, hereby irrevocably agrees that Genuine Solutions Ltd may collect any outstanding sums due at any time to Genuine Solutions Ltd from the Customer’s credit card or any other credit card details of which shall have been supplied by the Customer to Genuine Solutions Ltd or any associated company of Genuine Solutions Ltd on the Customer’s trading account application or otherwise from time to time.
6.8 Genuine Solutions Ltd reserves the right at its absolute discretion to levy a surcharge for all credit card transactions (including, without limitation, any described in Clause 6.4) in accordance with Genuine Solutions Ltd’s tariff applicable from time to time, a copy of which will be available at Genuine Solutions Ltd’s principal place of business.
6.9 Interest at an annual rate of 5% above Barclays Bank plc base rate from time to time will accrue daily and be calculated on a daily basis on overdue accounts from the due date until payment.
6.10 Where the Customer makes default under the Contract or any other Contract with Genuine Solutions Ltd in payment on the due date of any sum due to Genuine Solutions Ltd, Genuine Solutions Ltd without liability may postpone any delivery or may cancel the Contract or any other Contract between Genuine Solutions Ltd and the Customer but without prejudice to any right or remedy which Genuine Solutions Ltd may have against the Customer in respect of such default.
6.11 Genuine Solutions Ltd will be entitled to payment for all instalments of Goods delivered to the Customer.
6.12 Without prejudice to any other rights and/or remedies which Genuine Solutions Ltd may possess, Genuine Solutions Ltd (and/or any associated company of Genuine Solutions Ltd) will each be entitled to deduct from or set off against any debts or other sums whatsoever owed by Genuine Solutions Ltd (and/or any associated company of Genuine Solutions Ltd) to the Customer, any debts or other sums whatsoever owed by the Customer (and/or any associated company of the Customer) to Genuine Solutions Ltd (and/or any associated company of Genuine Solutions Ltd) and without prejudice to the foregoing, such deduction or set off shall be allowable across any other Contracts between Genuine Solutions Ltd (or any associated company of Genuine Solutions Ltd) and the Customer (and/or any associated company of the Customer) and shall continue to operate despite any receivership or fixed or floating charge. Without prejudice to the foregoing, the Customer will not dispose in any way (whether by assignment, charge, declaration of trust or in any other manner without limitation) of all or any part of its interest in any debts or other sums whatsoever owed by Genuine Solutions Ltd (or any associated company of Genuine Solutions Ltd) without the prior written approval of Genuine Solutions Ltd or such associated company and any purported disposal without such consent shall be void.
6.13 For the avoidance of doubt, set off under clause 6.13 is permissible on any debts or other sums whatsoever owed by the Customer to Genuine Solutions Ltd (or any associated company of Genuine Solutions Ltd) whether or not the debts or other sums are due and payable at the time of set off and/or whether the debts or other sums are contingent or certain, and/or liquidated or unliquidated at the time of the set off.
6.14 The Customer shall repay to Genuine Solutions Ltd forthwith on demand all expenses costs or charges (in excess of the administration charge referred to in paragraph 6.3) incurred by Genuine Solutions Ltd in enforcing any of the provisions of these Contract Terms (including without limitation any legal and/or debt collection costs).
6.15 The price charged by Genuine Solutions Ltd for Goods may include a discount reflecting commission, bonus or subsidy which will be payable by the network operator (or other supplier) of the Goods to Genuine Solutions Ltd in respect of sales of the Goods concerned if certain requirements are satisfied. Alternatively (or additionally) Genuine Solutions Ltd may agree from time to time that commissions, bonuses or subsidies are payable to the Customer (in cash, by set off against any amount owed by the Customer to Genuine Solutions Ltd, or otherwise) in respect of sales by the Customer of Goods to third parties. Such commissions, bonuses or subsidies will generally reflect commissions, bonuses or subsidies payable by the network operator (or other supplier) of the Goods to Genuine Solutions Ltd in respect of sales of the Goods concerned.
6.16 Genuine Solutions Ltd reserves the right, at any time in the future, to:
(a) invoice the Customer for all or part of the amount of any discount given to the Customer; or
(b) reclaim in full or in part the commission, bonus or subsidy paid or credited by Genuine Solutions Ltd to the Customer in respect of Goods sold by Genuine Solutions Ltd to the Customer in circumstances where the network operator (or other supplier) of the Goods is entitled to reclaim (either by set off or otherwise) from Genuine Solutions Ltd, bonus or subsidy in respect of such goods.
6.17 Any amount invoiced in respect of a discount, or commission, bonus or subsidy reclaimed, by Genuine Solutions Ltd pursuant to clause 6.17 may, at the option of Genuine Solutions Ltd, be set off against any commission, bonus, subsidy or other amount due from Genuine Solutions Ltd to the Customer.
7.1 If the Customer cancels, extends or delays or purports to cancel, extend or delay the Contract or part thereof, or fails to take delivery of any Goods at the time agreed (if any) or if no time is agreed within a reasonable time, then the Customer will be liable (without prejudice to any other rights of Genuine Solutions Ltd to claim damages) to indemnify and keep indemnified Genuine Solutions Ltd against any resulting loss, damage or expense incurred by Genuine Solutions Ltd.
7.2 If Genuine Solutions Ltd is unable (whether temporarily or permanently) to procure any services or goods necessary to enable it to supply the Goods or if the supply of the Goods is prevented or hindered by reason of any cause beyond Genuine Solutions Ltd’s reasonable control which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include governmental action, war, riot, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the work force or any part thereof of Genuine Solutions Ltd, restraints or delays affecting shipping or carriers, currency restrictions and Act of God, Genuine Solutions Ltd may cancel or suspend performance of the Contract by notice in writing to the Customer so far as it relates to Goods not then supplied or work not then done and such cancellation or suspension shall not give rise to any claims by the Customer provided that the Customer shall remain liable to pay for Goods delivered prior to the date of such cancellation or suspension.
If the Customer fails to take delivery of the Goods when they are ready for delivery Genuine Solutions Ltd may, at its option, either store them itself or have them stored by third parties on such terms as Genuine Solutions Ltd may in its absolute discretion think fit. In any event the cost of storage will be borne by the Customer and insofar as the storage is done by Genuine Solutions Ltd then such cost will be Genuine Solutions Ltd’s storage charges current at the time of storage. The cost together with any additional insurance or double handling charges will be added to and form part of the price for the Goods.
9.1 No variation in the specification or design of any Goods which in the reasonable opinion of Genuine Solutions Ltd does not affect the suitability of the Goods for the purpose for which they are supplied by Genuine Solutions Ltd will constitute a breach of Contract or impose upon Genuine Solutions Ltd any liability whatsoever provided that Genuine Solutions Ltd reserves the right to supply the Goods with any software levels unless the software levels have been specifically agreed prior to or on receipt of the Customer’s order.
9.2 Without prejudice to clause 9.1, Genuine Solutions Ltd shall be entitled to substitute for the Goods any other goods which Genuine Solutions Ltd, in its reasonable opinion, considers to be of equal or better quality.
10. Promotional material and Trademarks
10.1 No drawings, descriptive matter, weights, dimensions or shipping specifications issued by Genuine Solutions Ltd or the manufacturer of the Goods, nor the descriptions and illustrations contained in Genuine Solutions Ltd’s or manufacturer’s or supplier’s catalogues, price lists or other promotional material will form part of the Contract nor be regarded as a warranty or representation relating to the Goods.
10.2 For the avoidance of doubt, any taxation which may become payable in respect of any gifts or promotional items supplied by Genuine Solutions Ltd will be the responsibility of and be paid by the Customer and without limiting the foregoing, shall be declared by the Customer in the Customer’s tax return.
10.3 The Customer shall not be entitled to use any trade marks or trade names belonging to or associated with Genuine Solutions Ltd without Genuine Solutions Ltd’s prior written consent (provided always that, for the avoidance of doubt, the Customer shall not be required by this Clause 10.3 to remove any such trade marks or names from any packaging or other material supplied by Genuine Solutions Ltd with the Goods).
11.1 The Contract will terminate immediately upon the happening of any one or more of the following, namely, that the Customer has had a bankruptcy order made against him or has made an arrangement or composition with his creditors or otherwise taken the benefit of any Act for the time being in force for the relief of insolvent debtors or (being a body corporate) has had convened a meeting of creditors (whether formal or informal) or has entered into liquidation (whether voluntary or compulsory) or has a receiver manager administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution has been passed or a petition presented to any Court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer or any proceedings have been commenced relating to the insolvency or possible insolvency of the Customer. For the avoidance of doubt, a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation approved by Genuine Solutions Ltd in advance shall not trigger termination under this Clause 11.1.
11.2 The Contract will terminate immediately upon service of written notice of termination by Genuine Solutions Ltd on the Customer on the happening of any one or more of the following, namely, that the Customer has suffered or allowed any execution whether legal or equitable to be levied on his/its property or obtained against him/it or has failed to observe or perform any of its obligations or duties under the Contract or any other Contract between Genuine Solutions Ltd and the Customer or is unable to pay his/its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Customer has ceased to trade.
11.3 Genuine Solutions Ltd’s rights contained in Clause 5 (but not the Customer’s rights) shall continue beyond the discharge of the parties’ primary obligations under the Contract consequent upon its termination.
11.4 The termination of the Contract howsoever arising will be without prejudice to the rights and duties of either party accrued prior to termination.
12. Data Protection
12.1 Each party shall comply with its obligations under the Data Protection Legislation.
13. Confidentiality and announcements
13.1 The Customer shall keep confidential all information and materials of a confidential nature (the “Confidential Information”) which are supplied or provided to the Customer by Genuine Solutions Ltd pursuant to the Contract, and the Customer shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
13.1.1 any information which was in the public domain at the date of the Contract;
13.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement; and
13.1.3 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
13.2 This clause shall remain in force in perpetuity from the date of the Contract.
13.3 The Customer shall not make any public announcement or disclose any information regarding the Contract without the prior written consent of Genuine Solutions Ltd, except to the extent required by law or regulatory authority.
13.4 To the extent any Confidential information is ‘Personal Data’ (as defined in the General Data Protection Regulation (EU) 2016/679) such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any provisions of Clause 12.
14.1 Genuine Solutions Ltd will be entitled to assign or sub-contract the Contract or any part thereof.
14.2 Failure by Genuine Solutions Ltd to enforce any of the Contract Terms will not be construed as a waiver of any of its rights hereunder.
14.3 In relation to all obligations of the Customer under the Contract, the time of performance is of the essence.
14.4 The illegality, invalidity or unenforceability of any Clause or part of these Contract Terms will not affect the legality, validity or enforceability of the remainder. If any such Clause or part is found by any competent court or authority to be illegal, invalid or unenforceable the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
14.5 No variation of these Contract Terms shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of Genuine Solutions Ltd.
14.6 Each of the parties hereto is an independent contractor and nothing contained in these Contact Terms shall be construed to imply that there is any relationship between the parties of partnership or of principal/agent or of employer/employee.
14.7 The legal construction of these clauses shall not be affected by their headings which are for convenience of reference only.
14.8 Any demand, notice or communication shall be deemed to have been duly served:
14.8.1 if delivered by hand, when left at the proper address for service; or
14.8.2 if given or made by prepaid first-class post, 48 hours after being posted (excluding Saturdays, Sundays and public holidays); or
14.8.3 if given or made by fax at the time of transmission subject to receipt of the appropriate “clear” transmission report provided that where in the case of delivery by hand or transmission by fax, such delivery or transmission occurs either after 4.00p.m. on a Business Day or on a day other than a Business Day service shall be deemed to occur at 10.00a.m. on the next following Business Day (such times being local time at the address of the recipient). For the purpose of this clause a “Business Day” is a day when the banks in the location of the recipient are open for a full range of banking transactions Any demand, notice or communication shall be made in writing or by fax addressed to the recipient at its registered office or its address stated in this Agreement (or such other address or fax number as may be notified in writing from time to time).
15. Crime Prevention and other compliance
15.1 The Customer undertakes and agrees with Genuine Solutions Ltd that it will comply with the requirements of The Mobile Communications Crime Prevention Scheme established by The Federation of Communications Services Ltd and that it will ensure that parties to all transactions entered into by the Customer comply with the rules of the scheme as amended from time to time. The Customer further agrees to ensure that any business or company that trades with it will be informed of the scheme and that such parties agree to be bound by the scheme.
15.2 Each party shall comply with the applicable laws in relation to the United Kingdom’s bribery laws, ensuring that it has in place adequate procedures to prevent bribery and that all of that party’s personnel and related parties (including sub-contractors) engaged in relation to the Contract shall so comply.
15.3 Each party shall comply with the Modern Slavery Act 2015.
15.4 Any breach of Clauses 15.2 or 15.3 above shall be deemed to be a material breach of the Contract and shall entitle Genuine Solutions Ltd to terminate the Contract with immediate effect.
16.1 The Customer may not assign, subcontract or encumber any right or obligation under this Contract, in whole or in part, without Genuine Solutions Ltd’s prior written consent.
16.2 Notwithstanding Clause 16.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any of its affiliate companies provided that it gives Genuine Solutions Ltd prior written notice of such subcontracting or assignment including the identity of the relevant affiliate entity, and allows Genuine Solutions Ltd a reasonable period of time in which to object to any such subcontracting or assignment (and if any such objection is raised shall not proceed with any subcontracting or assignment). The Customer acknowledges and agrees that any act or omission of its affiliate entity in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
17. Dispute resolution
17.1 If any dispute arises in connection with these Contract Terms, the parties agree to enter into mediation in good faith to settle such a dispute. Unless otherwise agreed between the parties within 14 days of notice of the dispute, a mediator will be nominated by Genuine Solutions Ltd. This clause does not apply to any disputes in relation to which an application is or will be made for urgent injunctive relief.
18. Further assurance
18.1 The Customer shall at the request of Genuine Solutions Ltd, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
19.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
19.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
20. Third party rights
Unless it expressly states otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
The formation, interpretation and operation of the Contract will be subject to English Law and the Customer irrevocably agrees to the exclusive jurisdiction of the English Courts to settle any disputes or claims that arise out of, or in connection with, these Contract Terms.