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Conditions for Supply of Goods
and/or Services by i-Zimbra
For the purpose of these Conditions:
(a) "Advice Note" means the advice note from i-Zimbra to
the Buyer notifying the Buyer of delivery of the Goods;
(b) "Agreement" means the Order and i-Zimbra's
acceptance of the Order;
(c) "Buyer" means the person, firm or company who has
provided the Order;
(d) "Conditions" means these terms and conditions for
supply of Goods and/or Services;
(e) "Goods" means any goods agreed in the Agreement to
be purchased by the Buyer from i-Zimbra (including any
part or parts of them);
(f) "Order" means the written instruction for i-Zimbra
to supply the Goods and/or Services, incorporating these
Terms and Conditions;
(g) "i-Zimbra" refers to i-Zimbra Limited; and
(h) "Services" means any services agreed in the
Agreement to be purchased by the Buyer from i-Zimbra
(including any part or parts of them).
1. General
1.1 Orders are accepted subject to these Conditions and
no variation thereto shall operate unless expressly
agreed in writing by i-Zimbra; and
1.2 Any terms of purchase put forward by the Buyer in
any Order or otherwise shall be inapplicable and not
form part of this Agreement and the Buyer waives any
right which it might otherwise have to rely on such
terms and conditions.
2. Orders
2.1 All Orders whether based upon
i-Zimbra's quotation or otherwise shall be subject to
i-Zimbra's acceptance. No cancellation or deferment of
an Order will be accepted by i-Zimbra unless due notice
as defined below is given in writing and the Buyer pays
all i-Zimbra's expenses resulting from such cancellation
incurred to the date of such notice. Due notice shall
not be less than two-thirds of the lead time quoted by
i-Zimbra. Cancellation or instruction for deferred
delivery will not be accepted for any goods which have
been delivered or which are ready for delivery.
3. Quotation and Price
3.1 i-Zimbra's quoted prices are exclusive of Value
Added Tax and are valid for a period of thirty days from
the date of the offer, unless otherwise agreed in
writing. After this period i-Zimbra reserves the right
to charge at the price applicable at the date of
dispatch of the Goods or delivery of the Services.
Prices quoted are ex-works unless otherwise agreed.
i-Zimbra reserves the right to charge an additional fee
for packing or delivery requirements.
4. Payment
4.1 Unless otherwise specified by i-Zimbra
(a) Goods for delivery in the UK shall be paid for in
pounds sterling not later than 14 days following the
date of dispatch from i-Zimbra's works; and
(b) Services provided within the UK shall be paid for in
pounds sterling not later than 14 days following the
date of invoice from i-Zimbra.
4.2 Failure by the Buyer to make payment at the due date
shall entitle i-Zimbra to repossess the Goods and/or
suspend further deliveries and/or or suspend the
provision of Services until payment is made and/or
terminate this Agreement by notice in writing, without
prejudice to i-Zimbra's rights to damages for breach of
contract. Interest at the rate of two per cent above
Lloyds TSB base rate per month or part thereof will be
charged on overdue amounts.
5. Delivery
5.1 The risk and property in Goods for delivery in the
UK shall pass to the Buyer when the Goods leave
i-Zimbra's works unless i-Zimbra's own transport is used
when the risk and property shall pass on delivery
thereof to the Buyer, his servant or agent. In the case
of Goods for delivery outside the UK risk and property
pass on delivery on board ship or aircraft at the UK
port. i-Zimbra will provide an Advice Note to the Buyer
on delivery of the Goods. i-Zimbra will use all
reasonable endeavors to deliver the relevant Goods
and/or Services on the date quoted by i-Zimbra but this
date is given on the basis of production commitments at
that time and i-Zimbra accept no liability for late
delivery howsoever arising or any direct, indirect or
consequential damages arising therefrom.
6. Force Majeure
6.1 i-Zimbra reserves the right to defer the date of
delivery or to cancel the Agreement or reduce the volume
of the Goods ordered if it is prevented from or delayed
in the carrying on of its business due to circumstances
beyond i-Zimbra's reasonable control, including, without
limitation, acts of God, governmental actions, war or
national emergency, acts of terrorism, protests, riot,
civil commotion, fire, explosion, flood, epidemic,
lock-outs, strikes or other labour disputes (whether or
not relating to either party's workforce), or restraints
or delays affecting carriers or inability or delay in
obtaining supplies of adequate or suitable materials.
7. Claims
7.1 The Buyer shall within seven days of delivery of the
Goods and/or provision of Services give written notice
to i-Zimbra (and where relevant in writing to the
carrier) of any allegation that the Goods are damaged,
or the Goods and/or Services are not as specified in the
Order;
7.3 Non-delivery shall be reported by the Buyer within
ten days of the date of expected delivery as informed by
the applicable Advice Note;
7.2 If the Buyer fails to give written notice in
accordance with this Clause the Goods or Services shall
be deemed to be in all respects in accordance with the
Agreement and the Buyer shall be bound to accept and pay
for the same at the time or times specified hereunder.
Any Goods returned to i-Zimbra by means other than
i-Zimbra's own transport shall be returned at the
Buyer's risk and cost.
8. Warranty
8.1 i-Zimbra hereby warrants that the Goods will operate
in accordance with any written specifications provided
by i-Zimbra for a period of 14 days from date of
delivery of the Goods. During this period i-Zimbra will
repair or replace any part of the Goods should such
Goods fail to operate in accordance with such written
specifications, such repair or replacement to be the
Buyer's exclusive remedy with respect to any breach of
this warranty. Such repairs or replacements will be
affected by i-Zimbra free of charge provided that the
Goods are returned to i-Zimbra carriage paid by the
Buyer. i-Zimbra shall not be in breach of this warranty
if such breach is the result of:
(a) any alteration, repair or service of the Goods other
than by i-Zimbra or i-Zimbra's authorised agents;
(b) accidents, misuses, willful damage, negligent
handling or fair wear and tear by third parties other
than i-Zimbra or i-Zimbra's authorised agents; or
(c) faulty design if the designs have been prepared to
the Buyer's requirements and approved by the Buyer in
writing.
9. Intellectual Property Rights
9.1 Subject to Clause 9.2, i-Zimbra shall fully
indemnify the Buyer against all actions, claims,
demands, costs, charges or expenses arising from or
incurred by reason of any infringement or alleged
infringement of any third party intellectual property
rights protected in the United Kingdom, by the use or
sale of the Goods and against all costs and damages
awarded against the Buyer in final judgment in any
action for such infringement, provided always that this
indemnity shall not apply to any infringement which is
due to i-Zimbra having followed a design or instruction
furnished by the Buyer, or which arises from the use of
the Goods other than in accordance with i-Zimbra's
instructions, or which relates to any adaptation,
modification or enhancement made by the Buyer to the
Goods, or which results from the use of any software or
materials supplied by the Buyer to i-Zimbra;
9.2 The Buyer shall promptly notify i-Zimbra of any
claim being made or action brought against the Buyer
arising out of the matters referred to in this clause.
i-Zimbra shall have sole conduct of all negotiations or
litigation arising from such claim or action and
i-Zimbra shall be entitled to all proceeds arising
therefrom. The Buyer shall at i-Zimbra's request provide
i-Zimbra with all reasonable assistance in conducting
such negotiation or litigation; and
9.3 All Intellectual Property created as a result of the
work undertaken by i-Zimbra or its sub-contractors shall
vest in and be the absolute property of i-Zimbra.
10. Confidentiality
10.1 The Buyer shall keep in strict confidence this
Agreement (including but not limited to the charges
payable under it) and all technical or commercial
know-how, specifications, inventions, processes or
initiatives which are of a confidential nature and have
been disclosed to the Buyer by i-Zimbra or its agents
and any other confidential information concerning
i-Zimbra's business or its products which the Buyer may
obtain.
11. Limitation of Liability
11.1 Subject to Clause 11.3, neither party shall be
liable, whether in contract (including under any
indemnity or warranty), in tort (including negligence),
or under any statute or otherwise for or in respect of
any indirect and consequential loss of whatever nature
whether or not reasonably foreseeable, reasonably
contemplated or actually contemplated by the parties at
the time of execution of the Agreement;
11.2 Subject to Clause 11.3, the maximum liability of
each party under this Agreement shall be limited to the
charges payable under this Agreement; and
11.3 The limits on liability in this Clause 11 shall not
apply in respect of:
(a) any liability for death or personal injury resulting
from a party's negligence;
(b) any liability for fraudulent misrepresentation;
(c) the obligation on the Buyer to pay the charges;
(d) any breach by the Buyer of Clause 10; or
(e) any other liability to the extent which it cannot be
lawfully excluded.
12. Arbitration
12.1 Any dispute or difference arising out of this
Agreement shall be referred to an arbitrator agreed
between the parties or in default of agreement appointed
by the President of the Law Society of England and
Wales. Any such arbitration shall be in accordance with
the provisions of the Arbitration Action 1950 or any
such statutory modification thereof for the time being
in force.
13. Governing Law and Jurisdiction
13.1 These Conditions and the Agreement between the
parties for such and purchase of goods shall be governed
by English Law and the exclusive jurisdiction of the
English courts.
14. General
14.1 Each right or remedy of a party under the Agreement
is without prejudice to any other right or remedy of
that party whether under the Agreement or not;
14.2 If any provision of the Agreement is found by any
court, tribunal or administrative body of competent
jurisdiction to be wholly or partly illegal, invalid,
void, voidable, unenforceable or unreasonable it shall,
to the extent of such illegality, invalidity, voidness,
voidability, unenforceability or unreasonableness, be
deemed severable and the remaining provisions of the
Agreement and the remainder of such provision shall
continue in full force and effect;
14.3 Failure or delay by a party in enforcing or
partially enforcing any provision of the Agreement shall
not be construed as a waiver of any of its rights under
the Agreement;
14.4 Any waiver by a party of any breach of, or any
default under, any provision of the Agreement by a party
shall not be deemed a waiver of any subsequent breach or
default and shall in no way affect the other terms of
the Agreement; and
14.5 The parties to the Agreement do not intend that any
term of the Agreement shall be enforceable by virtue of
the Contracts (Rights of Third Parties) Act 1999 by any
person that is not a party to it.
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