TMC Technology UK., Co Ltd t/a TMC Technology, Ibase Technology and Ibase Europe
Terms of Trading, company number 02690113 (references to “we” or “us” to be construed accordingly).
The following expressions and words shall have the following meaning:
Business Days: a day other than a Saturday, Sunday or public holiday when the banks in the City of London are open for business;
Contract: the contract formed between you and us to which the Terms apply;
Force Majeure: any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, war, terrorism, riot, interference by civil or military authorities, malicious damage, breakdown of plant or machinery, explosions, fires, floods, storms, earthquakes, or extreme adverse weather conditions, or default of suppliers or subcontractors;
Goods: the goods and/or services set out in the Order;
Insolvency Event: any of the following:
a. being unable to pay your debts as they fall due; or
b. you (or any item of your property) becomes the subject of:
b(i) any formal insolvency procedure (examples of which include receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy);
b(ii) any application or proposal for any formal insolvency procedure; or
b(iii) any application, procedure or proposal overseas with similar effect or purpose.
Order: your order for the Goods, whether made verbally or in writing (including by post, e-mail, SMS, through the Website, or other instantaneous means), by way of an authorised purchase order or a signed copy of our quotation, as the case may be;
RMA: return merchandise authorisation number;
Terms: the terms and conditions set out in this document;
Specification: any specification for the Goods, including any related plans and drawings, supplied by us to you, or produced by us and agreed by you;
Specification Goods: goods supplied by us to you which are special, custom built and/or provided, non-standard products, products not stocked by us in the ordinary course of our business, value added products and other such similar products;
Warranty Period: a period of twelve calendar months commencing on and inclusive of the date of delivery, on a return to base basis, unless otherwise agreed in writing;
Website: each of and together www.tmc-uk.com and www.tmc-online.co.uk.
2 Business customers
2.1. We deal with business customers only and not consumers.
2.2. You are classified as a business customer where the Goods supplied by us will be used in the course of your business or if you use the Goods in the course of your business.
2.3. If you are not a business customer, you are a consumer. Please do not place Orders with us if you are a consumer.
3 Contract formation
3.1. These Terms apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied.
3.2. An Order constitutes an offer by you to purchase the Goods in accordance with these Terms and is not binding on us. You shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.3. The Order shall only be deemed to be accepted either when we issue a written acceptance of the Order or when we supply the Goods to you.
3.4. We reserve the right to refuse any Orders for any reason and Orders are subject to a satisfactory credit approval.
3.5. Any verbal Order made by you which has not been confirmed in writing by you shall nonetheless be binding on you.
3.6. The Contract constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation or warranty made or given by us or on our behalf which is not set out in the Contract, whether negligently or otherwise. This does not include any fraudulent misrepresentation.
3.7. Any samples, drawings, descriptive matter, or advertising issued by us whether through our Website or otherwise and any descriptions or illustrations contained on our Website, issued or published for giving an approximate idea of the Goods described in them shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale of the Goods and no reliance shall be placed by you on them.
3.8. You may request a quotation for the Goods by phone, email, instant messaging or via our Website and we may provide you with the quotation by email.
3.9. A quotation for the Goods given by us to you shall not constitute an offer. A quotation shall only be valid for a period of 5 Business Days from its date of issue (unless otherwise stated). Upon the expiry of the 5 Business Days period, the quotation shall be subject to express written confirmation from us as to its validity.
4.1. The price quoted excludes VAT (unless otherwise stated). VAT will be charged at the rate applying at the time of delivery.
4.2. Our quotations lapse after 5 Business Days (unless otherwise stated).
4.3. The price quoted excludes delivery and you will be charged for delivery such sum as reasonably determined by us (unless otherwise stated).
4.4. Unless otherwise stated, the price quoted is an illustrative estimate only and the price charged will be our price current at the time of delivery. Prices may be subject to change due to, for example, but not limited to, currency fluctuations and we shall be entitled to vary our prices accordingly at any time before delivery.
4.5. Rates of tax and duties on the Goods will be those applying at the time of delivery.
4.6. At any time before delivery we may adjust the price to reflect any increase in our costs of supplying the Goods.
5.1. All delivery times quoted are estimates only and the time of delivery is not of the essence.
5.2. We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.3. If we fail to deliver within a reasonable time, you may (by informing us in writing) cancel the Contract, however:
5.3.1. you may not cancel if we receive your notice after the Goods have been dispatched; and
5.3.2. if you cancel the Contract, you can have no further claim against us under the Contract.
5.4. If you accept delivery of the Goods after the estimated delivery time, it will be on the basis that you have no claim against us for delay (including indirect or consequential loss, or increase in the price of the Goods).
5.5. We may deliver the Goods in installments. Each installment is treated as a separate Contract to which these Terms apply.
5.6. We may decline to deliver the Goods if:
5.6.1. we believe that it would be unsafe, unlawful or unreasonably difficult to do so; or
5.6.2. the delivery location (or the access to it) is unsuitable for the delivery vehicle.
6.1. The Goods are at your risk from the time of delivery.
6.2. Subject to clause 11, delivery takes place either:
6.2.1. at our premises (if you are collecting them or arranging carriage); or
6.2.2. at your premises or address specified by you (if we are arranging carriage).
1.1.1. You must inspect the Goods on delivery. If any Goods are damaged or not delivered, you must notify us in writing within five Business Days of delivery. You must give us (and any carrier) a reasonable opportunity of examining such Goods and, if we request in writing that you do so, return such Goods
to our place of business at your cost and in accordance with the provisions of clause 11,
7 Payment terms
7.1. You are to pay us by one of the following methods: cash, BACS, cheque or by credit/debit card, in cleared funds prior to delivery, or via an approved credit account.
7.2. We reserve the right to change our accepted payment methods and our payment terms at our sole discretion upon written notification to you.
7.3. If you have an approved credit account, payment is due no later than 30 days after the date of our invoice unless otherwise agreed in writing.
7.4. We may require a deposit to be paid in advance by you, for example, but not limited to, where the Goods are in short supply or end of line or where, being a customer outside of the United Kingdom, you arrange for the collection of the Goods.
7.5. If you fail to pay us in full on the due date we may:
7.5.1. suspend or cancel your delivery;
7.5.2. cancel any discount offered to you;
7.5.3. charge you interest at the rate set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998;
a. calculated (on a daily basis) from the date of our invoice until payment;
b. compounded on the first day of each month; and
c. before and after any judgment (unless a court orders otherwise);
7.5.4. claim fixed sum compensation from you under s.5A of that Act to cover our credit control overhead costs; and
7.5.5. recover (under clause 7.9) the cost of taking legal action to make you pay.
7.6. If you have an approved credit account we may withdraw it or reduce your credit limit or bring forward your due date for payment. We may take any of these actions at any time and without notice.
7.7. Payment must be made in full without set off, deduction, retention, or withholding whatsoever.
7.8. While you owe money to us, we have a right to keep any property we may hold of yours until you have paid us in full (a lien).
7.9. You are to indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly and including finance costs and legal costs on a full indemnity basis) following any breach by you of any of your obligations under these Terms.
8.1. Until you pay all debts you may owe us:
8.1.1. all Goods supplied by us remain our property;
8.1.2. you must store them so that they are clearly identifiable as our property;
8.1.3. you must insure them (against the risks for which a prudent owner would insure them) and hold the policy on trust for us;
8.1.4. you may use those Goods and sell them in the ordinary course of your business, but not if:
a. we revoke that right (by informing you in writing); or
b. you become subject to an Insolvency Event.
8.2. You must inform us (in writing) immediately if you become subject to an Insolvency Event.
8.3. If your right to use and sell the Goods ends you must allow us to remove the Goods at any time.
8.4. We have your permission to enter any premises where the Goods may be stored:
8.4.1. at any time, to inspect them; and
8.4.2. after your right to use and sell them has ended, to remove them, using reasonable force if necessary.
8.5. Despite our retention of title to the Goods, we have the right to take legal proceedings to recover the price of Goods supplied should you not pay us by the due date.
8.6. You are not our agent. You have no authority to make any contract on our behalf or in our name.
9.1. The Supplier warrants that on delivery and for the warranty period the Goods shall:
9.1.1. conform in all material respects with any description on our acknowledgement of your Order; and
9.1.2. be free from material defects in workmanship.
9.2. Subject to clause 5.3, if:
9.2.1. you give us notice in writing during the Warranty Period within five Business Days of delivery that some or all of the Goods do not comply with the warranty set out in clause 9.1;
9.2.2. we are given a reasonable opportunity of examining such Goods; and
9.2.3. you (if we request in writing that you do so) return such Goods to our place of business at your cost and in accordance with the provisions of clause 11;
we shall, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
9.3. We shall not be liable for the Goods' failure to comply with the warranty set out in clause in any of the following events:
9.3.1. you make any further use of such Goods after giving notice in accordance with clause 9.2;
9.3.2. the defect arises because you failed to follow our oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
9.3.3. the defect arises as a result of our following any drawing, design or specification supplied by you;
9.3.4. you alter or repair such Goods without our prior written consent;
9.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
9.3.6. the Goods differ from any description on our acknowledgement of your Order as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
9.3.7. the Goods differ from any description on our acknowledgement of your Order
9.4. Except as provided in this clause 9, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 9.1.
9.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.6. These Terms shall apply to any repaired or replacement Goods supplied by us but, for the avoidance of doubt, repair or replacement of the Goods shall not prolong the Warranty Period.
9.7. Where Goods develop a fault more than 5 Business Days after delivery, we shall provide such reasonable assistance required for the issue to be resolved under the manufacturer’s warranty. This may result in a repair, replacement or other assistance from the manufacturer.
9.8. Where we are legally able to do so, we will transfer to you any remainder of the manufacturer’s warranty.
10 Limitation of liability
10.1. Nothing in these Terms shall limit or exclude our liability for:
10.1.1. death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
10.1.2. fraud or fraudulent misrepresentation;
10.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
10.1.4. defective products under the Consumer Protection Act 1987; or
10.1.5. any matter in respect of which it would be unlawful for us to exclude or restrict liability.
10.2. Subject to clause 10.1:
10.2.1. we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
10.2.2. we exclude all liability and shall not be responsible for any loss of or corruption of data due to or arising from the use or installation of the Goods or the return of the Goods;
10.2.3. we exclude all liability and shall not be responsible for any loss arising from any revisions made by us to any returned Goods as part of our
inspecting/testing procedure and, for the avoidance, we shall not be obliged to inform you if we have made any such revisions.
10.2.4. we exclude all liability and shall not be responsible for any Goods which are not in themselves defective but which are incompatible with your system(s) or where you have provided us, in our reasonable opinion, with insufficient information about your system(s) for us to assess compatibility of the Goods with your system(s); and
10.2.5. our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £2 million.
11 Return of Goods
11.1. We will accept the return of Goods from you only:
11.1.1. if agreed by us in writing;
11.1.2. you have obtained a RMA from our technical support department;
11.1.3. if the returned Goods together with all and any accessories supplied, including but not limited to, cables and manuals, are safely returned with the original packaging in tact; and
11.1.4. you have complied with this clause 11.
11.2. An RMA shall be valid for a period of 28 days from and including the date it is issued. After that time you will require a new RMA.
11.3. The following Goods are not returnable:
11.3.1. Specification Goods;
11.3.2. perishable Goods; and
11.3.3. opened software which is not faulty.
11.4. If you receive Goods that do not conform in all material respects with any description on our acknowledgement of your Order or which contain material defects in workmanship you must notify us in writing within 5 Business Days of delivery.
11.5. If you receive Goods that are damaged you should contact us immediately. The delivery consignment note should be signed for as damaged and the packaging retained
11.6. You must notify us in writing within 5 Business Days of delivery if you have received an item you did not order or, subject to clause 5.5, any items are missing. The delivery consignment note should be signed for as a partial delivery.
11.7. Should you wish to return non faulty Goods, you must notify us in writing within 5 Business Days of delivery. We reserve the right to reject the return of non faulty Goods and in any event they must be unopened, unused and in pristine condition, ready for re-sale. Non faulty returned Goods will be subject to the aggregate of a collection charge plus the higher of:
11.7.1. a handling and re-stocking fee of 30% of the purchase price; or
11.7.2. £20 plus VAT.
11.8. Returned Goods must be sent to the following address with the returns label attached to the outer box, without excessive amounts of brown tape, and the manufacturer’s box should not be defaced or damaged in any respects:
Returns Department, TMC Technology UK Co. Ltd, Unit 12, Wedgwood Court, Wedgwood Way, Stevenage, Hertfordshire, SG1 4QR or such other address as we may from time to time notify you in writing.
12 Revision Control
12.1. Subject to clause 12.2, any Goods that we supply you will be the latest versions of those Goods that we stock.
12.2. We shall in no circumstances be under any obligation to notify you (by issuing a revision notice or otherwise) if we have made any revisions to any of our Goods, even if you have previously purchased earlier versions of those Goods from us.
12.3. If you require that we supply you with a particular version of the Goods we will only be required to do so if we have given you our prior agreement to do so in respect of a particular Order (subject always to any conditions that we may decide to include as part of such agreement) and, the particular version of the Goods that you require is included in the description on our acknowledgement of your Order.
12.4. For the avoidance of doubt we shall not be liable for any loss or damage (including indirect or consequential loss, financial loss, loss of profits or loss of use) arising from our supplying you with different versions of the Goods to those that we have previously supplied to you unless and to the extent that you have received our prior agreement in accordance with clause 12.2and subject always to the overall liability cap in clause 10.2.5.
13 Export terms
13.1. Goods may be directly supplied to you from our suppliers’ factories in Taiwan, Asia or the European Union. Where the Goods are supplied to you in this way this clause 13 applies (except to the extent that it is inconsistent with any written agreement between us).
13.2. The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the Contract is made apply to exports subject to any variations set out in these Terms and these Terms shall prevail to the extent that there is any inconsistency.
13.3. Subject to clause 13.4, in respect of Goods exported and imported within the European Union, the Goods are supplied as agreed in writing between you and us on a case by case basis.
13.4. You shall promptly provide us with all information we reasonably require, at your cost, for taxation and or reporting purposes and other similar purposes relating to the export of the Goods.
13.5. In respect of Goods exported from Taiwan, unless otherwise agreed, the Goods are delivered FCA Taiwan, port to be notified by us, and clause 13.4applies.
13.6. Where the Goods are to be sent by us to you by a route including sea transport we are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.
13.7. You are responsible for arranging testing and inspection of the Goods before shipment (unless otherwise agreed). We are not liable for any defect in the Goods which would be apparent on inspection unless a claim is made before shipment. We are not liable for any damage during transit.
13.8. We are not liable for death or personal injury arising from the use of the Goods delivered in the territory of another State (within the meaning of s.26 (3) (b) Unfair Contract Terms Act 1977).
14.1. You may not cancel the Order unless we agree in writing (and clauses 5.3.2and 14.2then apply). Order for Specification Goods cannot be cancelled and you shall be responsible for all payments due under the Contract.
14.2. If the Order is cancelled (for any reason) you are then to pay us for all stock (finished or unfinished) that we may then hold (or to which we are committed) for the Order.
14.3. We may suspend or cancel the Order, by written notice if:
14.3.1. you fail to pay us any money when due (under the Order or otherwise);
14.3.2. you become insolvent; or
14.3.3. you fail to honour your obligations under these Terms.
15 Waiver and variations
15.1. Any waiver or variation of these Terms is not binding unless:
15.1.1. made (or recorded) in writing;
15.1.2. signed on behalf of each party; and
15.1.3. expressly states an intention to waive or vary these Terms.
15.2. All Orders that you place with us will be on these Terms (or any that we may issue to replace them). By placing an Order with us, you are expressly waiving any standard terms you may have to the extent that they are inconsistent with these Terms.
16 Force majeure
16.1. If we are unable to perform our obligations to you (or able to perform them only at unreasonable cost) because of a Force Majeure event for a period of more than 3 Business Days, we may immediately on the fourth Business Day cancel or suspend any of our obligations to you, without liability.
17.1. English law is applicable to any contract made under these Terms. The English and Welsh courts have exclusive jurisdiction.
17.2. If you are more than one person, each of you is liable for all of your obligations under these terms (joint and several liability).
17.3. If any of these Terms are unenforceable:
17.3.1. it will not affect the enforceability of any other of these Terms; and
17.3.2. if it would be enforceable if amended, it will be treated as so amended.
17.4. Any notice by either of us which is to be served under these Terms may be served by leaving it at or by delivering it to (by recorded delivery post) the other’s registered office or principal place of business. All such notices must be signed.
17.5. No contract will create any right enforceable (by virtue of the Contracts (Rights of Third Parties) Act 1999) by any person not identified as the buyer or seller.
17.6. The only statements upon which you may rely in making the Contract with us are those made in writing by someone who is (or whom you reasonably believe to be) our authorised representative and either:
17.6.1. contained in our estimate (or any covering letter) and not withdrawn before the Contract is made; or
17.6.2. which expressly state that you may rely on them when entering into the Contract.
17.7. Nothing in these Terms affects or limits our liability for fraudulent misrepresentation.
17.8. We shall be entitled to transfer, assign, novate all or part of our obligations under these Terms and/or the Contract without your prior consent. You shall not be entitled to transfer, assign, novate all or part of your obligations under these Terms and/or the Contract.