In these Conditions:
"You" means the person, firm, body or company who buys the Goods under the Contract
"BUFFALO", "We" or "Us" means BUFFALO TECHNOLOGY UK LTD (company number 02514456) whose registered office is at 2 Bracknell Beeches, Old Bracknell Lane, Berks, RG12 7BW, United Kingdom.
"Conditions" means the standard terms and conditions of sale set out in this document.
"Contract" means the contract for the purchase and sale of the Goods as confirmed by an order verification from BUFFALO to You
"Force Majeure" means any cause preventing either of us from performing any or all of its obligations from or is attributable to acts events omissions or accidents beyond the reasonable control of the party so prevented.
"Goods" means the goods (including any instalment of the goods or any parts for them") which BUFFALO is to supply under the Contract.
"Intellectual Property Rights" means all inventions, patents, registered designs, design right, copyright, know-how and trade marks (whether registered or not) or other industrial or intellectual property rights and applications for any of the foregoing.
"Restricted Information" means any information which is disclosed to You by Us in connection with this Contract (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such) including without limitation any document ideas, data or other information relating to our research and development, trade secrets or Our business affairs.
"the Territory" means the territory set out on Our order verification (if any).
"Trade Marks" mean the trade marks registered in Our name, or used by Us on or in relation to the Goods at any time during this Contract or as are listed on Our website from time to time.
"Working Day" means the hours between 0900 hours and 1700 hours on any day of the week excluding Saturdays, Sundays and public holidays in the UK or Republic of Ireland.
"Writing" includes facsimile transmission and electronically transmitted data.
2.1 We shall sell the Goods to You only on the basis of a written purchase order accepted by Our order verification, which is subject to these Conditions.
2.2 The quantity of the Goods shall be those specified in the order verification from Us.
2.3 In the event that not all of the requested quantity of Goods is available for delivery the order verification will specify the quantity of the Goods available for delivery at the time of sending out the order verification and will confirm that any balance of the Goods will follow at a later date and availability and any pricing amendments will be confirmed by a subsequent order verification.
In such circumstances You may cancel the order in full or cancel the order for the balance of the Goods by giving notice to Us in writing within five working days from the date of receiving the original order verification provided that the Goods have not by that date been dispatched to You.
2.4 These Conditions shall govern the Contract to the exclusion of any other terms or conditions.
2.5 Any variation to these Conditions must be agreed in Writing between You and Us. Our agreement must be signed by one of our Directors or our Financial Director.
2.6 Any advice or recommendation relating to the Goods given by any of Our representatives will not be binding on Us unless confirmed by Us in Writing.
3. ORDERS AND QUOTES
3.1 In accepting a quote or placing an order for the Goods You acknowledge that all information and specifications relating to the Goods and any material produced by Us are approximate only.
3.2 Any error or omission in any document issued by Us may be corrected without any liability to Us.
3.3 Any order placed by You shall only give rise to a Contract once it has been accepted by Our order verification.
3.4 All orders submitted by You must be accurate and made in good time to allow Us to perform our obligations under the Contract.
3.5 We may make any changes in the specification of the Goods to conform with any statutory or European Union requirements or, where the Goods are to be supplied to Your specification, which do not materially affect their quality or performance.
4.1 The price of the Goods shall be as stated in the Our order verification, accepting Your written order or in the case of 2.3 above the date of the subsequent order verification.
4.2 We may by giving notice to You at any time before delivery, increase the price of the Goods to reflect any increase in the cost of supplying the Goods which is due to any factor beyond the Our control.
4.3 All Goods to the EEA supplied by Us shall be sold on the following basis within the EEA:
4.3.1 CIP ("Carriage and Insurance Paid") for single orders in excess of 10,000 US dollars in which case We shall be liable for all reasonable costs of transport packaging and insurance;
4.3.2 ex works for single orders up to and including $10,000 US dollars in which case You shall in addition to the price be liable for all reasonable costs of transport packaging and insurance.
4.4 All Goods to be supplied by Us outside the EEA will be delivered at an agreed port of entry (regardless of the value of the order) and You shall, in addition to the price, be liable for all Customs clearance or other duties and all reasonable costs of transport, packaging and insurance.
4.5 Where You are liable for transport packaging and insurance costs, We agree to arrange for transport, packaging and insurance as agent for You and You shall reimburse to Us the full costs thereof and all the applicable provisions of these Conditions shall apply with respect to the payment of such costs as they apply to payment of the price of the Goods.
4.6 The price for the Goods is exclusive of any applicable value added or other local sales or other taxes for which You shall be additionally liable.
4.7 No price protection scheme shall apply to the Contract unless expressly agreed by the parties in Writing.
5. PAYMENT TERMS
5.1 We will invoice You for all sums due under the Contract after We have dispatched the Goods.
5.2 You will pay Our invoices in full by bank transfer, in the currency invoiced, without deduction or set-off within 30 days of the date of invoice or as otherwise agreed by Us in Writing. All costs associated with the bank transfer shall be paid by You. Time for payment shall be of the essence of the Contract.
5.3 If You fail to pay on the due date then We (notwithstanding that delivery may not have taken place and that title to the Goods may not have passed to You) may:
5.3.1 sue You to recover the sums due to Us;
5.3.2 terminate the Contract;
5.3.3 suspend any further deliveries to You until all sums are paid in full;
5.3.4 charge You interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per year above the Bank of England base rate in force from time to time from the date the payment became due until actual payment; and
5.3.5 by giving notice in Writing to You, cancel any other contract between You and BUFFALO.
6.1 The time and place for delivery shall be as requested in Your order or as otherwise agreed in writing. If no place for delivery is specified then delivery shall be made by You or Your agents collecting the Goods from Our premises. Where delivery is otherwise than at Our premises, We shall be under no obligation under Section 32(2) Sale of Goods Act 1979.
6.2 Any dates for delivery are approximate only and We will not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. The Goods may be delivered early by Us provided that we give 2 Working Day's notice to You.
6.3 If there is short delivery:
6.3.1 You will inform Us in Writing within 48 hours from the date of delivery. If you do not then We will not be responsible for any loss or damage suffered by You as a result of the short delivery;
6.3.2 all Goods and packaging shall be held by You to Our order, and shall be dealt with in accordance with Our written instructions;
6.3.3 our liability shall in any case be limited to the price of the Goods not delivered.
7.1 No stock rotation scheme shall apply to the Contract unless expressly agreed by the parties in Writing.
8.1 Risk of damage or loss of the Goods shall pass to You:
8.1.1 On delivery to Your premises where Goods are despatched CIF;
8.1.2 On despatch from Our designated warehouse where goods are despatched Ex works.
9. RETENTION OF TITLE
9.1 Title in the Goods shall be retained by Us until all sums due on any account from You to Us have been received by Us. If any indebtedness on any running account between BUFFALO and You is reduced to nil, title shall not pass in any Goods still held by You at the time of any later default in payment by You.
9.2 Until title passes to You, You will keep the Goods separate from Your own goods or those of third parties and properly stored, protected, insured and identified as Our property.
9.3 If the Goods are destroyed before You pay in full for any of the Goods, You will hold the proceeds of any insurance claim relating to the Goods as trustee for Us and shall pay the proceeds to Us immediately.
9.4 You may sell the Goods on Our behalf on reasonable commercial terms as Our agent and will be liable to account to Us for any proceeds of sale. As between You and any sub purchaser, You shall act as principal.
9.5 You will, as fiduciary agent for BUFFALO, pay the proceeds of any sub-sale equivalent to the invoice value of the Goods into a separate bank account clearly denoted as an account containing monies deposited for the benefit of BUFFALO and You will supply details of that account to Us.
9.6 You will, on request, give Us details of any sub-sale and shall assign any claims or causes of action that You have against a sub-purchaser to BUFFALO.
9.7 If the Goods are mixed with any products or materials, You shall have no interest in the resulting product ("the Product"e;). We shall be the owner of the Product, or (in the case of products or materials contributed by a third party) We shall be joint owner of the Product with the third party to the extent of the parties' contributions to the Product. You shall treat the Product as if it were the Goods.
9.8 Until ownership in the Goods passes to You, We may require You to deliver the Goods to Us and, if You fail to do so immediately, we may enter any premises where the Goods are reasonably thought to be stored and repossess the Goods.
9.9 If We recover the Goods We may resell the Goods. If the proceeds of sale are more than the amount due to Us from You, We may use the balance to pay the costs of taking possession and selling the Goods. If on resale the proceeds of sale are less than the amount due to Us, We may recover the shortfall from You.
9.10 You will not assign, factor or charge any of the Goods or any invoice for the Goods, which remain Our property. If You do then all monies owing by You to Us shall become due and payable immediately.
9.11 You shall not be deemed to be Our agent for any purpose other than to give effect to this clause 9.
10. INTELLECTUAL PROPERTY
10.1 All Intellectual Property Rights in the Goods and the Trade Marks and all technical, business or similar information created by Us during the course of the Contract shall be, and shall remain, exclusively Our property or those of our licensors.
10.2 We grant to You a non-exclusive, non-transferable, royalty free licence to use the Trade Marks to market, promote and resell the Goods to customers within the Territory. We may revoke this licence at any time if You fail to comply with the requirements of this clause.
10.3 You shall ensure that each reference to and use of any of the Trade Marks by You is in a manner approved by Us. You shall not modify the Goods or their packaging or alter or remove or tamper with any Trade Marks used on or in relation to the Goods or use any trade marks or trade names in the Territory that resemble any trade marks or trade names used by Us.
10.4 You shall not acquire any rights in respect of any Trade Marks used in relation to the Goods or of the goodwill associated with them and You acknowledge that all such rights and goodwill are and shall remain vested in Us.
10.5 You shall take all such steps as We may reasonably require to assist Us in maintaining the validity and enforceability of Our Intellectual Property Rights in the Goods and the Trade Marks during the term of this Contract.
10.6 You shall not register, own or use any domain name incorporating any Trade Marks or Our trading names, without Our prior written consent. On termination of this Contract, howsoever arising, You shall immediately discontinue use of such domain names, and shall perform all acts and things, and execute and deliver all further documents required to effect the full and permanent transfer of all rights and control in any such domain name to Us (or such third party as We may direct in writing) to enable Us to have full use and benefit of such domain names. You hereby appoint us as Your attorney to execute any such document for the purpose of giving Us the benefit of such domain name, as envisaged by this clause 10.6, such power of attorney to be irrevocable as long as any of Your obligations under this Contract remains undischarged. We shall pay Your reasonable costs (not to exceed £250 inclusive of VAT) in effecting such transfer of the domain names.
10.7 We make no representation or warranty as to the validity or enforceability of the Trade Marks or the Intellectual Property Rights in the Goods or whether they infringe any third party Intellectual Property Rights.
10.8 Without prejudice to Your right to challenge the validity of any of Our Intellectual Property Rights, You shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any of Our Intellectual Property Rights in the Goods or the Trade Marks and shall not omit or authorise any third party to do any act which by its omission would have that effect.
10.9 You shall promptly and fully notify Us of any actual, threatened or suspected infringement of Our Intellectual Property Rights and of any claim by any third party that the importation of the Goods into the Territory or their sale infringes any right of any other person. You shall at Our request and expense do all such things as may be reasonably required to assist Us in taking or resisting any proceedings in relation to any such infringement or claims and We shall have full control of such proceedings.
11. CONFIDENTIALITY AND DATA PROTECTION
11.1 Notwithstanding the terms of any non-disclosure agreement between us, You shall at all times keep all Restricted Information confidential and only use it for the performance of Your obligations under this Contract.
11.2 You may only disclose Restricted Information to customers, prospective customers, governmental or other authority or regulatory body, or any of Your employees to such extent as is necessary for the purposes contemplated by this Contract or as is required by law.
11.3 The restrictions in this clause 11 shall not apply to any Restricted Information which subsequently comes into the public domain (other than by Your breach) or that You can demonstrate to Our reasonable satisfaction was known prior to its disclosure.
11.5 From time to time We may provide You with personal data relating to Our end users, customers or resellers for the purpose of facilitating marketing activities. You shall act as a data processor (as defined in the DPA) and in processing such data shall:
11.5.1 process the personal data only in accordance with Our instructions;
11.5.2 process the personal data only to the extent, and in such manner, as it necessary for the specific marketing activity identified by Us;
11.5.3 implement appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
11.5.4 take reasonable steps to ensure the reliability of any staff who have access to the personal data and that they are appropriately trained and informed about the confidential nature of the information and the nature of this clause;
11.5.5 not transfer, disclose or divulge the personal data to any third party without Our consent in writing.
12. WARRANTY AND LIABILITY
12.1 Nothing in this clause 12shall exclude Our liability for death or personal injury caused by Our negligence or for any fraudulent misrepresentation.
12.2 We warrant that (unless otherwise stated on the Goods or their packaging or documentation) all Goods, (excluding consumables and software,) will be free from material defects for the period of the useful life of the product into which the Goods are incorporated which is expected to be a minimum of 24 months from the date of delivery to You provided that:-
12.2.1 the Goods have been used strictly in accordance with the specification issued by the manufacturer of the product into which the Goods are incorporated and in accordance with any documents supplied with the Goods;
12.2.2 You have provided Us with written notice of the defect no later than 30 calendar days from discovery of the defect;
12.2.3 neither you nor any third party end user (unless authorised by Us) has replaced parts, maintained, altered, modified, adjusted or repaired the Goods; and all Goods have been properly maintained in accordance with all reasonable instructions, pamphlets or directions given or issued by Us from time to time;
12.2.4 neither You nor any third party end user has removed any identification marks from the Goods; and
12.2.5 Buffalo has received all monies due under this Agreement from You.
12.3 Where You wish to return any Good under warranty, You must submit a request by email, fax or online (where available) using Our return request form. One request form shall be completed by You in respect of each type of defect or other quality issue forming the grounds for the return of a Good or batch of Goods. We will consider the application and we shall either authorise or decline the return request within 5 Working Days of its receipt. Where agreed We will issue a return authorisation RMA to You, which must be returned with the Goods to:
Buffalo Technology Returns, C/O Syncreon Buffalo Operation Dock 36, Van Hilststraat 23, 5145 RK Waalwijk, The Netherlands (or any other address that may be communicated to You for this purpose).
12.4 We may at Our discretion:
12.4.1 request Goods for evaluation and/or a technical report pending authorisation;
12.4.2 supply You with any part necessary to rectify the defect;
12.4.3 issue a compulsory request for the Goods to be recalled in line with quality control standard ISO 9001:2000 or instruct You to dispose of the faulty Goods in which case We will provide, at Our option, either replacements or a refund in respect of such Goods. If you dispose of the faulty Goods following such instruction, You shall do so in an environmentally friendly way approved by the local regulatory authority and shall provide Us with written confirmation that this has been done.
12.5 Where We authorise a return, We will provide You with a return authorisation number via fax, e-mail or online (where available). The return authorisation will be valid for 15 Working Days from the date of issue and will confirm whether the Goods have been accepted for repair, replacement (of all or any part), a refund or such other remedy as may be agreed in the circumstances. This shall be Our sole liability in relation to any breach of Our warranty set out in clause 12.2. The price refunded shall be the lesser of the price You paid for the Goods and the current list price. Returns are accepted at Our sole discretion.
12.6 By returning the Goods within 15 Working Days of the issue of the return authorisation quoting the return authorisation number, You shall be deemed to have accepted the terms stated in the return authorisation. Returns received by Us after the 15 Working Day deadline may be rejected by Us.
12.7 All returns shall be at Your expense to the agreed address and You shall be responsible for ensuring that:
12.7.1 all Goods are returned in appropriate packaging, free from material damage with the returns authorisation clearly displayed. Failure to do so may void any warranty in respect of the Goods and We reserve the right to return such Goods at Your expense;
12.7.2 adequate shipping documents are enclosed with the Goods quoting the return authorisation number;
12.7.3 all freight and other duties are paid in full by You; and
12.7.4 that only Goods authorised under the return authorisation number are returned.
In the event of any material discrepancy the Goods may be rejected by Us and returned at Your expense.
12.8 We reserve the right at Our absolute discretion to return the Goods to You at Your expense and charge a restocking fee in respect of Goods returned as defective where no defect is found.
12.9 Where We elect to replace the Goods We will, subject to availability and the terms of this Contract, despatch replacement Goods within a reasonable period following receipt of the authorised returns.
12.10 The warranty contained in clause 12.2and the remedies set out in this clause 12 shall be the extent of Our liability for defective Goods in breach of Our warranty in clause 12.2.
12.11 Subject to clause 12.1 and save as expressly provided in this Contract, all implied warranties or conditions are excluded to the fullest extent permitted by law and We will not be liable to You for any loss of any kind whatsoever which arises out of the breach of implied warranties or conditions or breach of any other duty of any kind imposed on Us by operation of law.
12.12 Subject to clause 12.1 we will not be liable for any of the following losses which may arise by reason of any breach of the Contract or any implied warranty, condition or other term, any representation or any duty of any kind imposed on Us by operation of law:
12.12.1 any loss of or destruction of data or any reconstitution thereof;
12.12.2 any loss of anticipated profits or expected future business;
12.12.3 damage to reputation or goodwill;
12.12.4 any damages costs or expenses payable by You to any third party;
12.12.5 loss of any order or contract; or
12.12.6 any consequential indirect or special losses of any kind.
12.13 Subject always to the provisions of clause 12.5 in relation to any breach of Our warranty under clause 12.2 if any liability attaches to us in respect of all loss or damage suffered by You in relation to this Contract and all orders placed hereunder howsoever any liability that arises shall be limited to the reasonable cost of remedying any defect in the Goods or other matter constituting a breach and in no circumstances shall Our liability exceed the lower of the total amount paid by You to Us under this Contract during the period of 12 months preceding the date of Your claim or £1million. No action in any form arising out of this Agreement shall be instituted more than 24 months after the cause of action has arisen.
12.14 You shall indemnify Us against any loss or damage suffered by Us as a result of any claims brought against Us by any third party for any loss, injury or damage in any way connected with this Contract provided that this clause will not require You to indemnify Us against any liability incurred by Us as a result of Our own negligence.
13. FORCE MAJEURE
13.1 Neither of us will be in breach of our respective obligations under this Contract to the extent that it is prevented or hindered in fulfilling its obligations by any Force Majeure event, providing that it promptly serves notice on the other specifying the nature of the delay and Force Majeure event.
13.2 If either of us is prevented from performance of its obligations by a Force Majeure event for a continuous period in excess of three months the other may terminate this Contract forthwith on service of written notice upon the party so prevent in which case neither of us shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
14. EXPORT TERMS
14.1 In these Conditions 'Incoterms' means the international rules for the interpretation of trade terms of the International Chambers of Commerce in force on the date when the Contract is made. Unless the context otherwise requires. any expression which is defined in Incoterms shall have the same meaning in these Conditions, but if there is any conflict between Incoterms and these Conditions, these Conditions shall prevail.
14.2 Where the Goods are supplied for export from the United Kingdom, if the provisions of this clause 14 are inconsistent with any other provision of the these Conditions. the provisions of this clause 14shall prevail.
14.3 You shall be responsible for complying with any legislation or regulation governing the importation or sale of the Goods into the country of destination and for the payment of any duties.
14.4 You shall where applicable:
14.4.1 not either directly or indirectly export the Goods or any product incorporating the Goods without first obtaining a licence to export or re-export from the United Kingdom Government and/or the United States Office of Export Administration (the "OEA");
14.4.2 comply with the export regulations of the United Kingdom Government and/or the OEA.
15.1 We may terminate the Contract or any other contract between the parties and may cancel or suspend future deliveries (under this Contract or any other contract) if You:
15.1.1 are in breach of these Conditions or any other contract between the parties; or
15.1.2 have a petition presented for its winding up or for an administration order to be made in respect of it; has a receiver or administrative receiver appointed over it or any of its assets; resolves to wind itself up (other than for a solvent reorganisation); has a bankruptcy order made against it or any of its partners; or enters, or proposes to enter into a composition or voluntary arrangement with its creditors.
15.2 On termination, You will pay Us all costs, expenses (including legal and other fees incurred), arrears, charges or other payments arising in respect of the Goods under the Contract and shall immediately cease all use of the Trade Marks.
15.3 Termination shall not affect either party's accrued rights under the Contract.
16. WITHDRAWAL AND USE OF GOODS
16.1 We may withdraw the sale or distribution of any goods produced by or generally supplied by Us without prior notice, or liability, to You.
16.2 If We provide You with information about the use for which the Goods are designed and about any conditions necessary to ensure that the Goods will be safe then You shall use the Goods accordingly.
17.1 Any notice required under these Conditions shall be in Writing addressed to the other party at its registered office or principal place of business or any other address notified by the receiving party to the party giving the notice. Any notice shall be deemed to be served:
17.1.1 if sent by pre-paid first class post to the party to whom it is given, on the second Working Day after posting; or
17.1.2 if sent bye-mail to the recipients e-mail address at the date and time given on the sender's print out) on receipt.
17.1.3 If sent by facsimile on the day of transmission provided that a confirmatory copy is sent by pre-paid post on the same day that the facsimile is transmitted.
17.2 We are committed to compliance with relevant EU and national directives, laws, taxes and regulators, including but not limited to the Waste Electrical and Electronic Equipment (WEEE 2002/96/EC) EU Directives. You shall be responsible at all times for ensuring compliance with all relevant local laws, taxes and regulations, including (but not limited to) registering yourself locally as a distributor, if applicable, and/or importer of electrical products and complying with any local reporting requirements. You shall provide Us with evidence of such compliance on reasonable request.
17.3 If any of these Conditions is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby and shall continue to be valid and enforceable to the fullest extent permitted by law.
17.4 The Contract and these Conditions shall be under English law and the parties submit to the exclusive jurisdiction of the English Courts if there are any disputes between them of any kind.
17.5 You shall not transfer, assign or sub-contract its obligations under the Contract without Our prior consent in Writing.
17.6 Failure or neglect by Us to enforce at any time any of these Conditions shall not be a waiver of Our rights and it shall not affect the validity of the whole or any part of these Conditions or prejudice Our right to take subsequent action.
17.7 Nothing in this Contract shall create or be deemed to create a partnership or the relationship of principal and agent or employer and employee between Us.
17.8 Each of us acknowledges that in entering into this Agreement we do not do so on the basis of and do not rely on any representation, warranty or other provision except as expressly provided in this Contract.
17.9 This Contract constitutes the entire agreement between Us and our understandings and supercedes any previous agreement between us relating to the subject matter of the Contract.
17.10 Nothing in this Contract shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999.